Loading...
HomeMy WebLinkAbout2007-10-26 SpecialJ ~~E IDIAN- CITY COUNCIL SPECIAL MEETING AGENDA City Council Chambers 33 East Idaho Avenue, Meridian, Idaho Friday, October 26, 2007 at 12:00 Noon "Although the City of Meridian no longer requires sworn testimony, all presentations before the Mayor and City Council are expected to be truthful and honest to the best of the ability of the presenter." 1. Roll-call Attendance: X David Zaremba O Joe Borton X Charlie Rountree by telephone X Keith Bird X Mayor Tammy de Weerd 2. Cooperative Construction and Reimbursement Agreement for North Black Cat Trunk Sewer with Brighton Development, Inc., Treehaven, LLC, Primeland Development Group, LLC and the City of Meridian: Approve Not to Exceed Amount 3. Tabled from October 23, 2007: FP 07-026 Request for Final Plat approval for 140 single-family building lots and 21 common lots on 89.70 acres in R-2, R-8 and R-15 zones for Jayker Subdivision No. 1 by Treehaven, LLC - 4042 West Chinden Boulevard: Approve $1,718,000 Meridian City Council Special Meeting Agenda -October 26, 2007 Page 1 of 1 ,All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearing, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. • E IDIAN%- ~~ ~;:~ CITY COUNCIL SPECIAL MEETING AGENDA City Council Chambers 33 East Idaho Avenue, Meridian, Idaho Friday, October 26, 2007 at 1~ Noon ~."'¢G~n., "Although the City of Meridian no longer requires sworn testimony, all presentations before the Mayor and City Council are expected to be truthful and honest to the best of the ability of the presenter." 1. Roll-call Attendance: /\. David Zaremba ~ Joe Borton Charlie Rountree ~~ ~~~hawe ~ Keith Bird ,~,~_ Mayor Tammy de Weerd 2. Cooperative Construction and Reimbursement Agreement for North Black Cat Trunk Sewer with Brighton Development, Inc., Treehaven, LLC, Primeland Development Group, LLC and the City of Meridian: G~"+vv~c net- ~ ,Q ~GCGeoC ~/ 3. Tabled from October 23, 2007: FP 07-026 Request for Final Plat approval for 140 single-family building lots and 21 common lots on 89.70 acres in R-2, R-8 and R-15 zones for Jayker Subdivision No. 1 by Treehaven, LLC - 4042 West Chinden Boulevard: ~.,ro,,.c, ~ !~ ~~ ~~ m~-a Meridian City Council Special Meeting Agenda -October 26, 2007 Page 1 of 1 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearing, please contact the City Clerk's OfFce at 888-4433 at least 48 hours prior to the public meeting. E • ,_. , CI"rY OF ~ ~~ _ -w. `~~ ~YIGlt1~l7 , ~ IDAHO ~ ~~~ ~ ~E7 t ~~ TFte.~s~.He V;v~Y% SINCE isoa MAYOR Tammy de Weerd CITY COUNCIL MEMBERS Keith Bird Joseph W Borton Charles M. Rountree David Zaremba CITY DEPARTMENTS City Attorney/HR 703 Main Street 898-5506 (City Attorney) 898-5503 (HR) Fax 884-8723 Fire 540 E. Franklin Road 888-1234/fax 895-0390 Parks & Recreation 11 W. Bower Street 888-3579 /fax 898-5501 Planning 660 E. Watertower Lane Suite 202 884-5533/fax 888-6854 Police 1401 E. Watertower Lane 888-6678/fax 846-7366 Pul?lic Works 660 E. Watertower Lane Suite 200 898-5500/fax 898-9551 - Building 660 E. Watertower Lane Suite 150 887-2211/fax 887-1297 - Wastewater 3401 N. Ten Mile Road 888-2191/fax 884-0744 - Water 2235 N.W. 8th Street 888-5242/fax 884-1159 • NOTICE OF SPECIAL MEETING MERIDIAN CITY COUNCIL NOTICE IS HEREBY GIVEN that the City Council of the City of Meridian will hold a Special Meeting /Workshop in the City Council Chambers at Meridian City Hall, 33 East Idaho Avenue, Meridian, Idaho, on Friday, October 26th, 2007 at 12:00 pm. The Meridian City Council will be discussing the following agenda items Cooperative Construction and Reimbursement Agreement for North Black Cat Trunk Sewer with Brighton Development, Inc., Treehaven, LLC, Primeland Development Group, LLC and the City of Meridian: Tabled from October 23, 2007: FP 07-026 Request for Final Plat Approval for 140 single-family building lots and 21 common lots on 89.70 acres in R-2, R-8 and R-15 zones for Jayker Subdivision No. 1 by Treehaven, LLC - 4042 West Chinden Boulevard: The public is welcome to attend. DATED this 24th day of October, 2007 WILLIAM G. \„~ :.`~~ - -JR. -CITY CLEF .i~; ,~,, s r~ ~; ~~ ~ `4~. `' C)-~ `S ,''' Meridian City Council Special Meeting -October 26, 2007 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearings, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. CITY HALL 33 EAST IDAHO AVENUE MERIDIAN, IDAHO 83642 (208) 888-4433 CITY CLERK -FAX 888-4218 FINANCE & OTIL[TY BILLING -FAX 887-4813 MAYOR'S OFFICE -FAX 884-£179 Printed on recycled paper ~f ~ i~OSt ~ l u ~i s e I~Cr~tc ~_ Y~+~=~,1 ~ '• f - 'm .~ crrY of ~R~pl~l ~YlG~1~Y1-w -~^ ~~~ E ~ IDAHO ~ i. 'Yn ~T.~.Tf/j %!5i TRE.iSIiRE ~'~U~/ SINCE - i ieoa 1VIAYOR Tammy de Weerd CITY COUNCIL 1VIEMBERS Keith Bird Joseph W. Borton Charles M. Rcuntree David Zaremba CITY DEPARTMENTS City Attorney/HR 703 Main Street 898-5506 (City Attorney) 898-5503 (HR) Fax 884-8723 Fire 540 E. Franklin Road 888-1234/fax 895-0390 Parks & Recreation 11 W. Bower Street 888-3579/fax 898-5501 Planning 660 E. Watertower Lane Suite 202 884-5533/fax 888-6854 Police 1401 E. Watertower Lane 888-6678/fax 846-7366 Public Works 660 E. Watertower Lane Suite 200 898-5500/fax 898-9551 Building 660 E. Watertower Lane Suite 150 887-2211/fax 887-1297 Wastewater 3401 N. Ten Mile Road 888-2191/fax 884-0744 Water 2235 N.W. 8th Street 888-5242/fax 884-1159 NOTICE OF SPECIAL MEETING MERIDIAN CITY COUNCIL NOTICE IS HEREBY GIVEN that the City Council of the City of Meridian will hold a Special Meeting /Workshop in the City Council Chambers at Meridian City Hall, 33 East Idaho Avenue, Meridian, Idaho, on Friday, October 26th, 2007 at 12:00 pm. The Meridian City Council will be discussing the following agenda items Cooperative Construction and Reimbursement Agreement for North Black Cat Trunk Sewer with Brighton Development, Inc., Treehaven, LLC, Primeland Development Group, LLC and the City of Meridian: Tabled from October 23, 2007: FP 07-026 Request for Final Plat Approval for 140 single-family building lots and 21 common lots on 89.70 acres in R-2, R-8 and R-15 zones for Jayker Subdivision No. 1 by Treehaven, LLC - 4042 West Chinden Boulevard: The public is welcome to attend. DATED this 24th day of October, 2007~yy~~ WILLIAM G. ~~~~, L~, ~ ~ f.~,~ ~,~~ - JR. -:CITY CLE _- v1 ~. ,. ,. Meridian City Council Special Meeting -October 26, 2007 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearings, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. CITY HALL 33 EAST IDAHO AVENUE MERIDIAN, IDAHO 83642 (208) 888-4433 CITY CLERK -FAX 888-4218 FINANCE & UTILITY BILLING -FAX 887-4813 MAYOR'S OFF1CE -FAX 884-87 79 Printed an recycled paper r ~E IDIAN?- CITY COUNCIL SPECIAL MEETING AGENDA City Council Chambers 33 East Idaho Avenue, Meridian, Idaho Friday, October 26, 2007 at 12:00 Noon "Although the City of Meridian no longer requires sworn testimony, all presentations before the Mayor and City Council are expected to be truthful and honest to the best of the ability of the presenter. " 1. Roll-call Attendance: David Zaremba Joe Borton Charlie Rountree Keith Bird Mayor Tammy de Weerd 2. Cooperative Construction and Reimbursement Aareement for North Black Cat Trunk Sewer with Brighton Development, Inc., Treehaven, LLC, Primeland Development Group, LLC and the City of Meridian: 3. Tabled from October 23, 2007: FP 07-026 Request for Final Plat approval for 140 single-family building lots and 21 common lots on 89.70 acres in R-2, R-8 and R-15 zones for Jayker Subdivision No. 1 by Treehaven, LLC - 4042 West Chinden Boulevard: Meridian City Council Special Meeting Agenda -October 26, 2007 Page 1 of 1 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearing, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. • • November 2, 2007 MERIDIAN CITY COUNCIL MEETING November 7, 2007 APPLICANT ITEM NO. S-B REQUEST Approve Minutes of October 26, 2007 City Council Special Meeting AGENCY COMMENTS CITY CLERK: CITY ENGINEER: CITY PLANNING DIRECTOR: CITY ATTORNEY CITY POLICE DEPT: CITY FIRE DEPT: CITY BUILDING DEPT: CITY WATER DEPT: CITY SEWER DEPT: CITY PARKS DEPT: MERIDIAN SCHOOL DISTRICT: ADA COUNTY HIGHWAY DISTRICT: SANITARY SERVICE COMPANY CENTRAL DISTRICT HEALTH: NAMPA MERIDIAN IRRIGATION: SETTLERS IRRIGATION: IDAHO POWER: US WEST: INTERMOUNTAIN GAS: MERIDIAN POST OFFICE: OTHER: Contacted: Date: Phone: Emailed: Staff Initials: Materials presented at public meetings shall become properly of the City of Meridian. • • Meridian City Council Special Meetina October 26, 2007 The Meridian City Council Special Meeting was called to order at 1:40 P.M. on Friday, October 26, 2007 by Mayor Tammy de Weerd. Members Present: Mayor Tammy de Weerd, Keith Bird, David Zaremba, Charlie Rountree (by telephone). Members Absent: Joe Borton. Staff Present: Bill Nary, Len Grady, Bruce Freckleton, Clint Dolsby, Keith Watts and Will Berg. Item 1. Roll-call Attendance: Roll call. X David Zaremba X Charlie Rountree X O Joe Borton X Keith Bird Mayor Tammy de Weerd Item 2. Cooperative Construction and Reimbursement Aareement for North Black Cat Trunk Sewer with Brighton Development, Inc., Treehaven, LLC, Primeland Development Group, LLC and the City of Meridian: Nary: Madame Mayor, Members of the Council I could probably start. This Cooperative Construction Agreement was something that was directed to us to bring forward. We did have a public (inaudible) process which was required by state statute. We have reviewed the Agreement with both Public Works as well as the signators from the development community that are seeking this reimbursement agreement. We have negotiated the terms. There are some outstanding issues in regards to some of the costs that I think Mr. Grady wants to discuss. They did provide a written copy of the Agreement and if it is approved by the Council then we can go forward with it today, but this is essentially a reimbursement agreement similar to others we have done recently for sewer extension projects. I think Mr. Grady had some issues that are outstanding in regards to some of the costs. De Weerd: Okay, Len. Grady: Madame Mayor and Members of the Council one of the outstanding issues was the construction services amount. When going through these it was determined there were approximately $140,000 worth of construction services. That equates to about nine percent. Typically we are seeing anywhere from • Meridian City Council Special Meeting October 26, 2007 Page 2 of 21 three to five percent to do this similar type of work. We feel the city could probably do that for somewhere around $30,000 to $40,000 with a contract with J-U-B and then some project management that would be taken care of by Clint or Kyle. You know, if you throw that in we are in the neighborhood of maybe $40,000 to $50,000 and we think the project management costs that they have shown are excessive. If we were to take that over we would just issue a contract with J-U-B and then like I say, turn the actual payment and verification over to one of our engineers. If that is option, we are willing to do that. De Weerd: Council questions? Bird: Madame Mayor. De Weerd: Mr. Bird. Bird: Len, how much did we pay J-U-B to do the original engineering design of this trunk line and is it not normal for the engineer on record to do the (inaudible) engineer that oversees the job and also is responsible for "as builts" and stuff like that? Is this the way we have done the south deals, too? Our engineering firm only went so far and then another engineering firm picked it up? Grady: Madame Mayor and Councilman Bird, yes that is exactly what happened. In fact J-U-B is concerned that if he then goes and reports to another developer he gets himself in between the city and the developer and they are just worried about a conflict of interest. So they preferentially tried to remove themselves from that process. Bird: And what did we pay them to engineer the project? Grady: It was approximately ten percent. Bird: $157,000? Grady: Clint said not quite $157,000. Bird: To engineer and then not -Len the only thing I am fearful of and if we get two engineering firms and we run into some problems, all you are going to get is finger pointing. I have never - I haven't spent any time in the utility construction, so I can't speak of that, but I have never known on a construction project that you build a building where you have had an architect draw it and then have another architect oversee the building of it because of the simple fact that we are asking for some real problems, I believe. I can't believe - if they charged us $157,000 to draw those plans that that had to have oversight included in it. I don't know, Len. • • Meridian City Council Special Meeting October 26, 2007 Page 3 of 21 Grady: Madame Mayor and Councilman Bird typically we don't get an estimate for the construction services until the project is designed and ready to go. Otherwise it really is a shot in the dark as to the issues. But, to answer your question this whole project has been a little bit extraordinary. We agreed to go ahead and push this design and get it going so that we could meet the developer's timeframe in anticipation that we were probably going to build it; then we flipped to the private industry building it. So it is not like we anticipated that we wouldn't do it necessarily, we just new we wanted to get going with design and so that is what we did. Bird: If we were to build it, J-U-B would be your overseer? Grady: Correct. Bird: But they are fearful to be the overseer now for that $30,000 or so because they don't want to get between the city and the -because in my book and we will discuss this at a later date and I don't know why -Bill and I have discussed this numerous times, why we even had to go out for public bid, but anyway - because we are buying a finished product from a private company. That is no different than Mayor going out and saying I will buy this building across the street that is already built, in my opinion. But I am not legal. De Weerd: Just for the record, I can't do that. Bird: Well, I know you can't, but anyway. Grady: I they were concerned that they would be -you know, they did the design work for the city and then they are also putting themselves in a construction role for the developer and if there is conflicts who is their master, so to speak? Do they serve the developer in a construction role or do they serve the city in the design role? Bird: Well, the way that I look at it, Len and I might be wrong, but they are working for both -they have designed this product and say this is the product and the way it needs to be built and this is it. So they are basically working for the guy that is building it and the city. There should not be any conflict. I mean, your department has bought off on the plans, right? Grady: That is correct. Bird: The builder is going to build the plans to the satisfaction of that engineer. The thing that I - and I will be real truthful with you, I am shocked that they can find another engineering firm that would even get in the middle of this. Because what is going to happen if the design is off five degrees and I am talking out of my head here because I don't know anything about that; but what happens and J-U-B says oh that is not our fault. That is somebody else's fault. That engineer • i Meridian City Council Special Meeting October 26, 2007 Page 4 of 21 says no it is J-U-B's fault. Then we have the job shut down. We have already lost 45 days to two months because of having to go through public bid and stuff. I don't know, I am real - and I know you believe this way, too, that private can do it faster and better most of the time. You have stated that many times, too. Grady: That was certainly my intention to proceed that way, but I can't with a straight face say that with these costs. Now I have talked to several other engineering firms and its actually fairly typical, for example, somebody with ITD to do the design and then to have another engineer to come and do the construction. It is done quite a bit. What is not done is to have somebody reporting to both; to two different masters and that is what we would be asking J- U-B to do. Bird: But, Len, I guess I have got this confused in my mind, which isn't hard to do. The city is buying a finished product. It is no different than buying a building. What the private industry is going to do - in fact, we should probably have let them higher the engineering firm why you had to buy off on the plans and have them do the whole thing and let the same firm be responsible. Because who is going -- in the final end which engineering firm is going to be responsible for everything in it? How can you expect somebody else that hasn't drawn it to come in and do the "as builts"? I just can see and what I felt was we were just buying a finished product. They would turn it over and they would do the things completely on the private end of it and say here is -basically they are sticking their necks out. We didn't have to buy it. Grady: Councilman Bird thinking back when we were still talking about reimbursement agreements and who was going to do what, I pulled the trigger on J-U-B again to make sure that we had this product up and ready so that we could bid it. Had we not done that, we would just be starting the design right now because this is the first time we have an agreement with those people. The engineering would have been built into that reimbursement agreement and we would start our design today. So I think by pulling the trigger, I think it was the right decision and I also, like I say, spoke with several engineering companies and it is not uncommon for somebody like Civil Survey to come in and do the construction services. What is not common is to have one engineer reporting to two different entities and that is what we would be asking J-U-B to do. De Weerd: I guess my question would be is why would they be reporting to two different agencies if we are contracting this ouf privately? They will be the project oversight; we will still have the inspection responsibilities as we do with any project, but it would be privately run and kind of a turnkey. I guess that was my understanding - Grady: Understood Madame Mayor. If there is a problem out in the field, J-U-B would not be able to argue on our behalf and they would not be able to argue on the developer's behalf because they have two different masters, so to speak. I Meridian City Council Special Meeting October 26, 2007 Page 5 of 21 think for them to put themselves into a situation where there is a problem in the field, we would expect them to be protecting our interests; the developer would be expecting them to protect their interests and J-U-B, really by ethics code of the P.E. Board can't do that. Bird: Madame Mayor. De Weerd: Mr. Bird. Bird: But Len, don't you believe that there would be less conflict with one engineering firm doing from start to finish than having two? I can't see where J- U-B would ever have to be in between the builder and the city because they have drawn the drawings and if it is not done to their specifications that is the developer. The city would have nothing to do with that. J-U-B has a stamp and I realize most of these stamps are hard to read and you don't know sometimes if they are even on the same project they drew, but I just don't know. I know what we are dealing with and with your self in the Public Works and the three developers we are working with, we are not going to have any problems. But, if we set this as a precedent, I could see us having some big time problems between having two architects on the same job or two engineering firms on the same job. I can see us getting ourselves into some awfully hot water. I have said my piece. Grady: Madame Mayor, Councilman Bird in that particular case that actually fits in with having the city go ahead and- run this project. It takes care of that particular issue and in this particular case, I believe we can do it cheaper. So it fits in with one of the scenarios that I wanted to present today is that the city go ahead and contract with J-U-B just to finish this up. We have some excellent inspectors on site that keep our engineers informed. I think we can do it efficiently. I have spoken with Brown Construction. They are willing to honor their contract price if the city takes it over. That is certainly an option for you. Short of that, I would recommend that those total construction management costs be reduced quite a bit. Nine percent in this industry is unheard of. It is typically three to five. Engineers love to get six and again Matt Schultz on the south is doing the exact same thing. He has hired an engineer to come in and do that and at least one of those sections is 2.8 percent overhead. The precedent is set that it can be done. De Weerd: So Len, what you are saying is we can do this project for less in the same timeframe? Grady: Well, I don't know what the timeframe is. I haven't seen a schedule yet. De Weerd: Then why did we go down this road? Meridian City Council Special Meeting October 26, 2007 Page 6 of 21 Grady: It was back when we thought that we could have things done by private industry that was faster and cheaper. It is something that I believed was the case and this was sort of the model that was going to set that precedent. De Weerd: And then we told them they had to do a public bid? Grady: I can't speak to that. That is not a Public Works issue. De Weerd: No, it is a city issue. It is a city one. Bird: Let me state something too. I did call around - like I told you I don't know the utilities, the contractors or the CM's for those jobs, but I did call building CM's and four to five percent is right. Now if we take out the engineering and the surveying and the testing, their actual construction management is about four percent. I will be truthful Len and I didn't know that this was happening and I don't know if the other Councilman did or not and this is my fault for not knowing. But, I can't believe we would pay somebody $157,000 to engineer something and all they had to do was draw the drawings and be done and they didn't have any responsibility after that. You know when they hire this other guy their responsibility goes away. Grady: Councilman Bird, I can't agree with that. I think their responsibility lies in that design and that stays with it. If the design is faulty it doesn't matter who built it. It still falls back on them. Bird: What does their signed stamp say? Grady: I am sorry, I am not sure I understand the question. Bird: I will bet you somewhere in there and this guy here could probably answer this for sure, but I bet somewhere in there it says when another engineer, architect or something becomes responsible for the installation of this, our responsibility goes away. I think that is what it says. Like I said, I have never read many engineering, but I have read a lot of architect for it and that is basically what it says. Anyway, I would like to and 1 don't know about the other two -are you still there Charlie? Rountree: Yes. De Weerd: Are you following this? Bird: Are you tired of hearing me talk? Rountree: No, go ahead. It is an interesting dialogue and is kind of a conundrum that we have got ourselves into. Meridian City Council Special Meeting r October 26, 2007 Page 7 of 21 Bird: I agree and if you and David agree I would like to hear from Frank also. Zaremba: Madame Mayor if I may ask one question ahead of that and show my ignorance? We have in front of us the bid sheet that has several bidders and my question is to whom were those bids submitted? Who opened them the city or a private developer? Watts: Madame Mayor, Council Members and Councilman Zaremba the bids were actually bid to the developer, opened by the developer and in the case that if the city took this over the actual construction cost would still have to run through the developer. The city could manage it, but the $1.578 million for the construction, would have to run through the developer, I believe, since we did not issue the bid and they were not submitted to the city. Zaremba: I guess that is a legal question. Are we able to take over? It was apparently a reasonably public bidding process that happened the way we would have done it if we had done it. But, can we take it over? Nary: Madame Mayor and Members of the Council, Mr. Grady asked me that before we started the meeting. I don't know a legal reason that you can't. I think the problem is and that is why I asked Mr. Watts' opinion on was because we weren't the agency that was submitting that - I mean if (inaudible) Construction wants to honor that that is fine. I don't know -that is a unique question and I don't have an answer. The statute is new enough that it is hard to tell whether or not we would still have to manage this through Primeland Development or DBTP since they were the actual agency or actual entity that was seeking those bids. Because this wasn't something that was contemplated at that time. Zaremba: Would the losing bidders have any call to say against the city that we were doing something wrong? Watts: No. My first response would be if they were bid to another public agency, we would be able to take it over. If it was a public agency. But, they would not have any recourse on the bid. De Weerd: Charlie? Rountree: Madame Mayor that was my question that if we pulled that particular item or that -not we if the developer pulled that item out of the bid package after the bids had been opened, wouldn't that invalidate any of the bids? Watts: The project management information was not part of the bid. Rountree: Not part of the bid? Watts: No. • Meridian City Council Specia Meeting October 26, 2007 Page 8 of 21 Rountree: So it seems to me the first question in the approval is that we approve or deny the bid amount and then hash out who is going to do the project management? Watts: Yes, that is my understanding as well. Zaremba: Councilman Rountree you are saying that we first need to validate the award of the bid? Is that what you are saying? Rountree: That is what I am hearing and then if there is a question on a project management in cost and we have flexibility along with some flexibility on the part of the developer we can come to an agreement that the city is going to do it or some other party is going to do it for a lesser cost. I don't see why that should necessarily hold up the awarding of the bid. Watts: Madame Mayor and Councilman Rountree Bill will have to clarify this for me, but my understanding would be that we would enter into a contract. We are not necessarily awarding the bid, we would award a contract to the developer for that bid amount. Then we would negotiate how the management of that project would take place. Rountree: And that would be part of that agreement as well? Watts: Yes. Rountree: Okay. Bird: Madame Mayor. De Weerd: Mr. Bird. Bird: I and Councilman Rountree chime in here if you don't agree. I have a problem with the contract for the work being under Primeland who would be the boss, to put it in simple form, to the contractor doing the work. But public is going to do the inspections and stuff. I would have to think that the low bidder might want to take another look at that and we are talking about having engineering firm answering to two people. That poor general contractor answering to two people, too. Plus he is going to be answering to an engineer. I feel this is something and I hope we will continue to do our projects this way and this is something that we have got to work out, but right now we need to sit down and see if we can't negotiate some stuff. But, I don't think we can take the construction management the way we bid it and everything without delaying it a long time and having private responsible for the building of it and the public responsible for the engineering, which we have already done and the inspection and all that stuff. So, I don't know. I would like to - Meridian City Council Specia Meeting October 26, 2007 Page 9 of 21 Rountree: Madame Mayor, Keith I guess my sense is that this project has been designed by J-U-B is that correct? Grady: Correct. Rountree: So they are responsible for the engineering. If there are field situations that are encountered that are different from what their engineering design is and if those plans are altered only J-U-B can alter those plans; otherwise you are getting into a situation where a set of design step plans are being altered by either a job foreman or another engineering firm. They won't do that and if it is done without J-U-B's knowledge and if something does go haywire, J-U-B rightfully would object and accept no liability. Bird: That is what I was saying earlier. Grady: Madame Mayor, Members of the Council, Mr. Rountree we would obviously retain J-U-B to protect our interests there. We would make sure that any of the design changes would be -you know they would be our representative to make sure that whatever design changes that we were protected. So I think we are okay there. De Weerd: Council let's listen to the developer and get their impressions and be nice. How this has sounded looks a little hairy, but Frank. Variele: Frank Variele. I am one of the member developers party to this Agreement. My address is 1320 Bell Tower in Meridian. Madame Mayor, Council Members to say the least this has got my head spinning. Where to begin? I think the issues you raised are very valid and from the very beginning as we entered into this process we were quite surprised that the design engineer would not work with the developers and would only be representing the city. Although Mr. Grady indicates that this is common practice, we find it to be highly irregular and not at all common experience to any of the three developers that are party to this. The only reason that we were able to get another engineer to step up and be responsible for the project's construction management and the "as built" drawings in my opinion is because that engineer works for one of us. Otherwise, I don't think we could have gotten anyone else to step forward and take that position. The cost that you see in your cost breakdowns of $60,000 for that individual is somewhat of a duplicate cost we are paying again for what we believe J-U-B should have been doing and if J-U-B was to do it we believe it could be done at a much lower cost because they are familiar with the project; they are familiar with the drawings; they did the design and they are already to a certain extent accepting liabilities. When we bring in another engineer that engineer starts from ground zero and is accepting a lot of liability for -you know he did not receive the $157,000. In any event, we were able to meet the requirement that was put upon us that developer provide that engineer to fill that Meridian City Council Special-Meeting October 26, 2007 Page 10 of 21 position and we did that in accordance with the bid documentation and the agreement that you have before you. The other cost that you see outlined in that $138,000 is one $65,000 for the management fee and as Councilman Bird indicated that does equate to about four percent. The survey is also an item that the developers were required to provide and that is a control line, the center line of the sewer along with manholes and control points that we are required to provide and be responsible for. The testing and inspection verification number is an item that we added again because again we are being required to be responsible for the testing and certification of the project as well as the actual original testing will be done by the contractor. It is in his bid the $1.5, $1.6 million number that you see that he has provided. He has construction staking and testing included in that. But, since the developers were made responsible for the testing we felt it was essential that we have verification of testing so that $4,250 that you see there is for us to go back and do spot testing of the contractors testing to ensure that what we are seeing is correct as well as if we do not agree with a test that the contractor provided that we would then be able to provide verification testing that things are as they should be. So in reality the $138,000 that Mr. Grady brings up is not at all the contract management of the project. It is a combination of the $65,000 four percent number of management along with other costs that we were required to put in based on the way the project is structured. There is no reason in my mind that if the city required J-U-B to act as the engineer on this project and handle the construction management that that still couldn't happen. The allowance here of $60,000 could be struck. We would be happy to work with J-U-B. I disagree with them. I do not believe -well, disagree with J-U-B and that they would be working for two masters. I don't see that at all. We are constructing the project in accordance with their plans and specifications. I believe that they should be held to be responsible for those plans and specifications. That is a decision that the city would have to make. That is a negotiation that the city would have to fulfill. From the very beginning as we tried to communicate with J-U-B, they would not talk to the developers at all. Any communication we had with them was done through Mr. Grady. That made it very difficult at the onstage of this process. But, as the city required us to fulfill the needs without J-U-B, we have done that and it is quite obvious that there are some numbers here that are higher than they should be, but that is the reason why. Bird: Frank I have a question on the $1.5 or $1.6 million let's call it, the bid amount as I understand this and the Agreement and I haven't read through it - but, you will be paying, you three out of your own pockets will be paying this contract to Mr. Brown or Brown Construction and then at the end you will receive this money from the city? Variele: That is correct, Councilman Bird. The Agreement is written where the developers will be advancing the money for the total project out of pocket and I might add that we are assuming all of the interest costs, none of that cost is included in the cost that you see and our estimate on that number is about • Meridian City Council Special Meeting October 26, 2007 Page 11 of 21 $30,000 to $40,000 that the developers are absorbing for the cost of that money. At the completion of the project, there is a method of payment outlined in the Agreement after it has been accepted and approved and then we receive payment and it becomes city property. Bird: That is what I wanted to get pointed out that you guys are taking care of interest and everything like that and it is your money until you give us the final finished product. Variele: That is correct Councilman Bird. It is our money and to a certain extent it is our sewer pipe. Bird: That is right. De Weerd: Yeah, kind of. Bird: If we don't pay it is theirs. They don't have any place to hook it up to. Zaremba: They just pack it until it is full and dig another. Bird: Anyway, Madame Mayor. De Weerd: Yes, Mr. Bird. Bird: Frank while you are willing - if Len can go talk to J-U-B and get them to come on and be the construction engineers, too and in the same token you should be able to go direct to it as contractors or Mike should be able to or somebody. Anytime you have to go through different people then it's delays. We have already delayed this project a couple of months. Would you be willing to drop out the engineering of the $60,000? Variele: Councilman Bird absolutely. We have no reason to want to add cost to this project. It would not be necessary. De Weerd: Mr. Rountree do you have any questions for Frank? Rountree: Thank you Madame Mayor. No, Frank did a good job explaining and helping clear up some of the issues. My comment is and I don't know that Len or Bill or Keith or any of them would agree and Keith Watts but it seems to me the (inaudible--) going to change J-U-B to do something for the City of Meridian - as they did that they are the City of Meridian, they are our representatives. We are one. I am having a real hard time with the logic that they seem to be coming up with that they would be working for a developer and the city. It is the city's design and they designed it for us and acting in our regard. If they are the construction engineers on the design that they work in our regard then they should only be answering all that we ask them to do and that is provide a sewer • • Meridian City Council Special Meeting October 26, 2007 Page 12 of 21 line per our standards and if that means that they have to tell a developer that something needs to be done different because there's something that would not (inaudible) obvious in the design process then I am assuming the developer is going to be willing to bare that cost and ultimately the city. I am just real confused at why it's so convoluted. I don't know. I agree I think they ought to be able to do their project constructions well. Zaremba: Madame Mayor. De Weerd: Mr. Zaremba. Zaremba: Are we saying that J-U-B's issue is -let me back up. They have been paid for what they provided so far I assume. Is their issue whose name would be on the check for any continued work? Is that why they feel there is a conflict? Anybody know the answer to that? Variele: Councilman Zaremba the understanding that I was given at the onset of this is that they are concerned about being caught between the developer and the city and who they would have to represent and it would be a conflict within their licensing. Some of these things, I believe, could easily be handled by just simply assigning the darn thing to the builders. If we don't deliver this project to the city, fully in compliance with the plans, fully incompliance with all of your inspectors you aren't going to buy it from us. That is really where it stands. I mean, it doesn't say at the end of this you have to buy it. It says unless we have complied with all of the specifications that your inspectors have signed it off as they would any Public Works project and so on and so forth. The management that we are going to be doing is going to be extremely diligent to be sure we are in compliance with plans specifications and all of the city requirements so that you will buy this and accept it. I fail to see where there is a conflict of interest there. I really do. Again because it has never been our experience where we have seen an engineer do this. We have built - we ran the Ten Mile line up Ten Mile to Bridgetower six years ago and we had none of these issues and probably J-U-B did the design of that one. It is highly irregular. This is not the normal. Rountree: Madame Mayor. De Weerd: Yes, Charlie. Rountree: If I might interject and I appreciate Frank's comments. I think probably one of the things that is driving this and we probably will see it more and more in the future is the situation with McCall and all the things that have gone on up there between engineering firms and McCall and construction operations and etcetera. So this may just be a fall out what occurred up there. De Weerd: I don't know. I do know that this is new and always with new agreements and a new process and a new approach there is a lot of details that i Meridian City Council Speci~Meeting October 26, 2007 Page 13 of 21 seem not so easy to deal with when you get to them. We can look back and think wow why was that so complicated, but we are in the midst of it and it is not as easy as it might have seemed it should be. I look at the last project we had at Meridian and McMillan with ACHD and the private developers. Well, that was project number nine, so their process was well under way. They have worked through the devil and the detail type of things and we are at the very beginning of our public private type of approach. You know these are the painful pieces. We are trying to figure out the way and we didn't have the right way finder and we are doing the best we can. I know our staff has worked awfully hard in trying to do the right things, to ask the right questions. I know our private side has been frustrated by our process and they have had questions. This is just number one and we are trying to do it right and I know that our staff always has that protection and we have to protect the integrity and you know that. It is, Council, how we can move this along and that is why we had this special meeting, so we didn't delay the project any further, but again, we need to get through these details so we can get this project underway. Jay did you have something? Bird: Can I ask a question before Frank goes down, Madame Mayor? If we were to twist or Len was to be able to twist J-U-B's arm, which I feel it should be and it shouldn't be hard to do and I hope as a city we will never allow an engineer to just draw the plans and not see it through because we are asking for trouble. We have been successful. Our private public adventures have been very good up to this point and I want to keep it that way and we have got to do that. If we were to do that, Frank do you believe -with them there that the surveying and testing and inspection could go well also? Variele: Councilman Bird the - I am not privy to what their agreement with the city is. I don't know what they have included and not included in that. I believe you are really looking -what we really are talking about is $60,000. I find it hard to believe that they are going to come out and do the construction management for $30,000 to the level that the developers and the city would want to see. We are much more intent on the degree of management that is performed out in the field. One visit a day is not enough. We are not going to be able to spot problems, get them corrected, spot potential areas of delay and get those corrected before they become issues if you are only out there once a day or once every other day. Typically that is what engineers are going to do for that dollar amount. So we are probably not looking at saving the whole $60,000, but that really, I think, the number that is in that realm. I think it would totally be possible to approve the Agreement as it is presented to you and then -because then we know we have a working document, which we can move forward with immediately; get our contractor on line and have him ordering materials and beginning to stage and move this project forward and the developer and the city could then work in any method that we could to see if we could achieve cost reductions in these areas. We would be very open to that and very open to assisting the city in anyway we could to reduce the estimated cost on those areas. • Meridian City Council Specia Meeting October 26, 2007 Page 14 of 21 Bird: That is agreeable to this Councilman as long as it is something that I believe we can -Len and you guys can work out and it is to everybody's benefit including you three to save and cut costs or not cut costs, but save costs. We don't want to cut. De Weerd: Be thrifty. We want you to be thrifty. Do we want to hear from Jay now? (Tape turned over) Walker: Jay Walker representing Brighton Corporation. 12601 W. Explorer, Suite 200, Boise, Idaho 83713. I don't want to beat a dead horse here. I certainly appreciate Len Grady and the Public Works Department for pushing ahead with the design and at least capitalizing on their already good relationship with J-U-B. I appreciate what Legal has done as well in trying to protect the best interest of the city, but again I reiterate what Frank and I think some of you, Mayor and Council Members have reiterated and that is that I think this is a very cooperative effort and if the cooperative Development Agreement kind of hands in hands puts the city and us and developers together rather than work separately I think we can work together and get this accomplished with the good design that has currently been done. I don't see where we would -you know I have had the experience and you say this is the first, Mayor, but we have actually completed two of these over with water extension mains and we have worked with the Public Works Department and it is gone very smoothly. They have utilized the engineers that we had on the roadway projects to complete a small portion design on water extensions and it has worked beautifully and I have set up on call work orders with the engineers to come out at specific times when myself or the Public Works Department or ACHD had questions regarding the design to come and speak for themselves on those issues and resolve it. In my limited experience in the engineering design arena, there is no perfect plans; there is always going to be things that come up as part of the construction that are on for (inaudible) and you need to address those and there is no one better to address those than those that have done the design, J-U-B. De Weerd: I don't know at City Hall we new everything that was going to happen. Walker: And hopefully that is the case. I could be incorrect on this design by J- U-B. They may have captured everything and encountered every uncovered pipe, but I am certain with the number of adjacent irrigation facilities that we have with Settler's Irrigation District that we are going to encounter some things. It would be certainly a benefit to the progress of this project to have them involved and to respond quickly. I think -Councilman Bird and I were talking and they in their clause want to protect themselves and place a two week turnaround time, but they can do that much quicker especially as we work hand in hand with Len and with the Public Works Department. I don't see why J-U-B would ever pit • Meridian City Council Specia Meeting October 26, 2007 Page 15 of 21 either one of us against. I think in the end the city is the owner and the maintainer of the pipeline in the end. We will surely build that to specifications ISPWC and to the city standards. We wouldn't have it any other way and to their design, which they have done. So, I think based on experience I really think that if we pull together and work hand in hand and help J-U-B to stand by their plans, it will be the easiest way and we will minimize the costs. I guess, I haven't combed through the cooperative Development Agreement that Frank and Glen Fiche have put together with the city, but I am sure it provides us an opportunity to work together for this end product and we all want the good end product. So we are certainly willing to work Len Grady and the Public Works Department, quickly assess any problems that arise and address them with his involvement as quickly as possible, but our fear is that we don't delay this project any longer with the water coming in in the spring and we need to get going on this. I will stand for any questions. Bird: I have none. De Weerd: Thank you, Jay. Watts: A couple of thoughts that I wanted to address and I think similar to what Len was proposing is something similar to the City Hall project, where we are having a construction manager; somebody else is designing and somebody else is building and we all have to work together to accomplish a project. It is similar to a construction management project. The other thing that I wanted to say too is the Public Works bidding process, I worked with Glen from Primeland and really I think from the time we put out the bid till now has only been maybe three weeks or so. So, after we decided to go that direction it was a pretty quick process. think once again it is very similar to a construction management project, where we have separate designer, builder subcontractors. Bird: Madame Mayor. De Weerd: Yes. Bird: Keith you can't even compare City Hall to it. We have got the same architect inspecting; the same engineers doing all of that. Right here we are asking one engineer to design it and the other to come in and be responsible for building it. We have - LCA has designed that from day one and have been inspecting everything and okaying it; we didn't go hire CHSQA to come in and do that. Watts: I absolutely agree with you on that. Bird: That is what we are doing here. We are paying J-U-B $160,000 approximately - I can guarantee you that if you read that stamp good somewhere they are going to be able to wiggle out. • Meridian City Council Specia Meeting October 26, 2007 Page 16 of 21 Watts: I agree that we absolutely should have the same engineer do the construction management as the design as well. Bird: I thought you did. Grady: Madame Mayor, Members of the Council no good deed goes unpunished. Holy cow. All I wanted to do was keep this project on track. When we entered with this contract with J-U-B, their understanding was that we were going to take it through to completion. We were the ones that pulled the carpet out from them and Ijust -there has been a lot of Iamb basing of J-U-B, but it is really us who have changed the game plan on them. I will just throw that out. The $157,000 also included all of the pressure sewer all the way back to the plant, so there was quite a chunk of that also. Again, I will remind you that RMR Consulting, who we just finished approving their reimbursement agreement had about 2.8 percent on -similar type thing the nine percent that Primeland is proposing, RMR is doing for 2.8 percent. Same situation J-U-B designed, RMR come through and they are doing the engineering "as builts" and all of the project management. So all I want to do is present to you that I think this is approximately $100,000 over cost and we will just leave it at that. I am willing to work with you - if you like these and want to pull forward I am certainly willing to do that. Bird: Madame Mayor. De Weerd: Mr. Bird. Bird: Len you said that you pulled the rug on J-U-B. I don't want anybody in this room to not think that we as a Council aren't responsible for Public Works, too and we are not bashing anybody anywhere because I am one Councilman that believes in this system and I think that - well, I do have a problem when the same engineer doesn't start and finish, but that is something that we can deal with. I think we need to move on with it. I am sure you are willing to work with those three gentlemen to get less costs into it if we can. I would recommend that you go to J-U-B and see what their cost is to finish this job. I don't know whether the other developers have entered into a contract with their engineer or not, but I just feel sorry for another - it would be the same Len as if Brad Watson designed a job and then contracted out and hired you to come in and oversee it. You wouldn't like it. Grady: Understood. I realize it is not an ideal situation, but again, it was 100 percent geared towards getting this project moving solely to keep the developer on track and it feels like the city is subsidizing, that the city is paying a penalty because of our efforts to proceed quickly. That is just my - Bird: I can tell you that Frank Variele's company has put in sewer and water many times for the City of Meridian and never got reimbursed for years. So I Meridian City Council Special Meeting October 26, 2007 Page 17 of 21 know that they are wanting -they are good business men, all three firms and they are going to want to get it as cheap as they can too. I appreciate what you have done 100 percent. Rountree: I agree absolutely. To some extent I think that - I am not sure about the $100,000 excess. I don't have the numbers in front of me obviously to play with, but I think Frank hit on some of it and some of the cost and the numbers you are seeing are going to borne by somebody and I think that the $60,000 you are talking about is in the three to five percent for construction management. In all the other testing requirements for self protection may or may not be necessary depending on how the final language in the Agreement is crafted, so depending on how much risk one another is willing to take there is money to be saved I am sure. I am ready to move forward. I would like to see the Agreement at least go forward on the construction activity. If the construction management lower side is not part of a bid then let's agree to agree that we will work that out in short order with Public Works staff and developer's staff and get that molded into a separate Agreement or and addendum to the Agreement on the construction phase. Bird: Madame Mayor. De Weerd: Mr. Bird. Bird: Charlie would you be agreeable if in our motion we allow the four percent and then we take the engineering surveying and testing and inspection and see if we, between Len and Frank can't maybe negotiate that down? Rountree: I think you have to make a call out on an attempted value engineering and then work through that with the developer and see if there are some cost savings for the city and them as well. Yeah, I think that is a valid point. Bird: Is that agreeable with you, Len? Grady: Councilman Bird if I am understanding you would agree to the $65,000 for Primeland and then the rest of it - Bird: -- we would negotiate. You and Frank could sit down and well a lot of it is going to depend on if we can get J-U-B to come in and do it for $30,000. There is an automatic $30,000 change. Maybe in the same token they can throw in the testing of stuff. But, basically right now to get this construction going and it is only fair that Primeland gets their percent because they have got to foot the upfront bills and I can guarantee you there are upfront bills. At least gets you started and then you guys can work this out and I know you can sit down and work it out. Is that agreeable to you? Grady: I will work with however you want to do it. I am wide open. • Meridian City Council Special Meeting October 26, 2007 Page 18 of 21 Bird: Is that agreeable with the three --? They are nodding their heads now. De Weerd: Please let the public record know that there are heads nodding out there. They are not sleeping. They are in agreement. Mr. Nary. Nary: Madame Mayor, Members of the Council the rest of the Agreement there is I guess maybe two things if you want to do it that way. One is to make it clear whatever you are not to exceed amount that you want for this contract. Secondarily it does reflect in a number of different places in the contract that it is actual cost; they are required to bring those amounts back to you before you reimburse any of it. So you can do it one of two ways. You can approve the Agreement as it is drafted with a not to exceed amount with that direction to the Public Works staff and the developers that they do that. The money is simply earmarked in this Agreement, but you are not obligated to pay it until they bring the actual cost and have included in your motion is that direction that you just told Mr. Grady and the developers have agreed to on the record then as long as it stays under that amount, you are fine. If you would prefer that they bring back a different negotiated resolution then you could do that -the only reason I say that, Councilman Bird, is what you are proposing they are going to have to bring back another negotiated resolution. If that is what you would like to see then you can, but if you want to make it to a not to exceed amount leave the contract as it is and make that direction as it is made clear that they are going to have to prove that to you before this is paid, you still get the same result and that allows you to move forward as you proposed. Bird: I have no problem with that if Len has no problem because you would be the one responsible to see that it doesn't go over the contract. Grady: I will work within those guidelines. That works. Bird: Mayor do you want a motion? De Weerd: Anything further? Bird: Madame Mayor. De Weerd: Mr. Bird. Bird: I would move that we enter into the agreement for the north Black Cat Trunk Line Sewer with Brighton Corp, Treehaven and Primeland and the City of Meridian for a contract to not exceed $1,718,000. Zaremba: Second. De Weerd: Okay I have a motion and a second. Any discussion? Do we have enough clarification on that? • Meridian City Council Specia Meeting October 26, 2007 Page 19 of 21 Variele: Madame Mayor and Councilman Bird would that motion exclude change orders? Bird: Oh heavens, no. Nary: Madame Mayor and Members of the Council, Mr. Variele, yes and no. Yes, there is a provision that (inaudible) requires prior to the change order that that must be brought back to the Council before it is incurred and that is at their discretion for those changes and included was also in that fee, the management fee that that is also at the discretion of the Council depending on what the change order is. The only other thing I was going to say, Councilman Bird, I think this is your intent just to make it clear that direction both to the parties here that are the developer as well as the Public Works staff the direction to negotiate if possible any other cost savings towards the engineering inspections surveying through either our current engineer J-U-B or how ever that can be negotiated that is a direction that you have also given that you would like to see before this is brought for reimbursement. Bird: Include that because that is what the testimony is. I didn't say it, but that is what I meant. Zaremba: And the second intended that as well. De Weerd: That is what all public testimony meant. Bird: But, the change orders, no, they would come forward but I would state on change orders, Frank, as being an owner of a lot of stuff you might ask for authorization of work, but the change order has to originate from the owner which would be Len or his department. Is that not right? Is that agreeable? I mean you can ask for work authorization. Variele: I think if your motion is just simply accepting what is in the Agreement on how change orders are handled, we are perfectly fine with that. I was just concerned that as you were putting a cap on the price that that would not allow change orders, which would be an unforeseen events - Bird: We are just going to add another mile or two of trunk. De Weerd: We thought that maybe if private do it, we didn't have change orders. Variele: Madame Mayor, hopefully that is true. Nary: I think what Councilman Bird was really stating was that our normal process is that if you seek a change order that goes through Public Works. If there is some dispute or something that ultimately the Council could make that decision. Meridian City Council Specia• eeting • October 26, 2007 Page 20 of 21 De Weerd: Okay any further discussion? Rountree: Madame Mayor. De Weerd: Yes, Mr. Rountree. Rountree: (Inaudible). De Weerd: Oh, okay. Sorry. Mr. Berg will you please call roll. Roll Call Vote: Bird, aye; Zaremba, aye; Rountree, aye; Borton is absent. THREE AYES. ONE ABSENT. MOTION CARRIED. Item 3. Tabled from October 23, 2007: FP 07-026 Request for Final Plat approval for 140 single-family building lots and 21 common lots on 89.70 acres in R-2, R-8 and R-15 zones for Jayker Subdivision No. 1 by Treehaven, LLC - 4042 West Chinden Boulevard: De Weerd: I see Anna here. Canning: Madame Mayor and Members of the Council we have a letter from the applicant stating they are in agreement with the Cpnditions of Approval for Jayker Subdivision. De Weerd: Council any further information needed? Bird: I have none. De Weerd: Do I have a motion? Bird: Madame Mayor. De Weerd: Mr. Bird. Bird: I move we approve FP 07-026. Zaremba: Madame Mayor, point of order. Is this actually a public hearing? Do we need to close the public hearing first? De Weerd: No, it is not a public hearing. It is a final plat. Zaremba: Second the motion. De Weerd: I have a motion and a second. Any discussion? Mr. Berg will you call roll? Meridian City Council Specia• eeting • October 26, 2007 Page 21 of 21 Roll Call Vote: Bird, aye; Zaremba, aye; Rountree, aye; Borton is absent. THREE AYES. ONE ABSENT. MOTION CARRIED. De Weerd: Council I would entertain a motion to adjourn. Bird: So moved. Zaremba: Second. De Weerd: All those in favor. THREE AYES. ONE ABSENT. MOTION CARRIED. MEETING ADJOURNED AT 2:49 P.M. (TAPE ON FILE OF THESE PROCEEDINGS) APPROVED: ~~~ TAMMY DE D, MAYOR t~~ ~ ATTESTED: ~Gr~-~- ILLIAM G. BERG, l~ / 7 /~~ DATE APPROVED „~~~~~e,,,, ,~` ~ ~`~ ,, °f,, k~6„ V ~~~~~ JR IT C K ~ ~,/moo ~ ,s~ \` ~~ 's ,~~ , October 24, 2007 MERIDIAN CITY COUNCIL MEETING `~- October 26, 2007 APPLICANT ITEM NO. fir' 2, REQUEST Cooperative Construction and Reimbursement Agreement for North Black Cat Trunk Sewer with Brighton Development, Inc. Treehaven, LLC Primeland Development Group, LLC and the City of Meridian AGENCY COMMENTS CITY CLERK: See aNached CITY ENGINEER: CITY PLANNING DIRECTOR: CITY ATTORNEY CITY POLICE DEPT: CITY FIRE DEPT: CITY BUILDING DEPT: CITY WATER DEPT: CITY SEWER DEPT: p CITY PARKS DEPT: V`~~ MERIDIAN SCHOOL DISTRICT: ~/ ADA COUNTY HIGHWAY DISTRICT: SANITARY SERVICE COMPANY CENTRAL DISTRICT HEALTH: NAMPA MERIDIAN IRRIGATION: SETTLERS IRRIGATION: IDAHO POWER: US WEST: INTERMOUNTAIN GAS: MERIDIAN POST OFFICE: OTHER: Contacted: Date: Phone: Emailed: Staff Initials: Materials presented at public meatinga shall become property of the City of Meridian. • • COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT NORTH BLACK CAT TRUNK SEWER -LINE A THIS AGREEMENT made this 2b day of a~'~ 2 ~ , 2007, by and between the CITY OF MERIDIAN, a municipal corporation, hereinafter called "CITY," and Brighton Development Inc., an Idaho corporation; Treehaven, LLC, and Idaho limited liability company; and Primeland Development Company, L.L.P., an Idaho limited liability partnership (BTP), hereinafter called "DEVELOPER": WITNESSETH: WHEREAS, DEVELOPER owns land inside the corporate limits of the City of Meridian and desires to construct a sanitary sewer system to be owned, operated, and maintained by CITY to serve DEVELOPER's property and future City of Meridian property, shown on Exhibit "A" and has requested reimbursement for a portion of the sanitary sewer system; WHEREAS, upon recommendation of the Public Works Department, the City Council of CITY accepted and approved the proposal of DEVELOPER to construct the sanitary sewer system, subject to all conditions hereinafter provided by this Agreement; NOW THEREFORE, in consideration of the foregoing premises, CITY and DEVELOPER hereby agree: 1. Preparation of Plans. CITY has prepared plans and specifications, drawings, instructions, bid proposal and all other contract documents for the construction and installation of sanitary sewer system (hereinafter called "Project"), shown on Exhibit "B," including rights-of--way, grades and elevation, and materials used in the construction and installation of said trunk sanitary sewer lines. DEVELOPER shall not be liable for any damages or delays caused by the CITY's plans and specifications, drawings, instructions, bid proposal and other contract documents prepared by the CITY. 2. Final Plans. CITY and DEVELOPER shall acknowledge in writing the final plans, and said plans shall not thereafter be modified in any material way unless such modifications are approved in writing signed by CITY and DEVELOPER. The final plans and specifications are attached hereto as Exhibit "B" and are made a part of this contract. 3. Construction of the Project. A. DEVELOPER shall install and construct the Project in compliance with and subject to all conditions provided herein. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 1 of 13 • B. CITY, with the cooperation from the DEVELOPER, shall endeavor to obtain and/or provide engineering, permanent and temporary easements adequate for timely completion of the Project at no cost to DEVELOPER and DEVELOPER will provide all surveying and contract administration with the contractors which shall be considered a cost of the project. C. DEVELOPER shall undertake and/or provide all testing, sampling and other normally conducted measures for quality controUquality assurance regarding any and all installed systems and shall be considered a cost of the project. D. CITY shall provide inspection services for the construction of the Project in accordance with CITY standards at its cost. 4. Solicitation of Bids. DEVELOPER shall award the construction contract to the lowest qualified bidder, after obtaining approval from the City Council of the successful bidder and bid amount which approval shall not be unreasonably withheld, delayed or conditioned. The bids shall be administered in accordance with state public bidding laws pursuant to the CITY's purchasing guidelines. 5. Contract Terms. DEVELOPER shall provide CITY with a copy of the executed construction contract(s). All construction contract(s) shall include, at a minimum, the following provisions: A. A requirement that the contractor provide payment and performance bonds naming CITY as an additional beneficiary as required by the Public Works Contractors License Act, Chapter 19, Title 54 of the Idaho Code. B. A requirement that the successful bidder be licensed as a public works contractor. C. A requirement that the construction of the Project shall be in accordance with the approved designs, plans, and specifications and be Substantially Complete within twenty-four (24) weeks from the date DEVELOPER issues to the contractor written notice to proceed. For the purposes of this Agreement, the term "Substantially Complete" shall mean that the Project and all components thereof can be safely used for their intended purpose(s) despite the fact that some item or items remain uncompleted. D. A provision that the time for Substantial Completion will only be extended by (a) acts of God, (b) war, (c) delays caused by CITY, or (d) any request for extension of time approved in writing by CITY. E. A requirement that the contractor shall pay liquidated damages of Five Hundred Dollars and 00/100 ($500.00) per day for each day that Substantial Completion is delayed beyond twenty-four (24) weeks from the date DEVELOPER issues written notice to proceed, or no later than May 1, 2008, or beyond the extended date as allowed herein. F. A requirement that the contractor shall maintain liability insurance insuring against bodily injury or death with limits of not less than One Million Dollars ($1,000,000.00) COOPERATIVE CONSTRUCTION AND REIIvIBURSEMENT AGREEMENT -Page 2 of 13 • per person and per occurrence, and property damage with a limit of One Million Dollars ($1,000,000.00) per occurrence, naming both DEVELOPER and CITY as co-insureds. G. A provision that the contractor shall indemnify CITY and DEVELOPER from any and all claims by third persons arising out of the performance of the contract. H. A provision that the contractor shall comply with all applicable laws, rules, and regulations, and that the contractor shall secure all applicable permits and pay all applicable fees. I. A provision providing at least a one (1) year warranty on the operation and materials of the Project from the contractors, which warranty shall be assignable to CITY. J. DEVELOPER shall have the right to rely upon instructions and the authority of the City Engineer. 6. Conditions Precedent to Execution of Construction Contract(s). Prior to execution of any construction contract, the following conditions shall be satisfied: A. DEVELOPER shall obtain written approval from CITY of the form and terms of such construction contract, including but not limited to DEVELOPER's failure to obtain a construction contract that contains the provisions required by this Agreement, but which approval shall not otherwise be unreasonably withheld or delayed. B. Any easements required for the Project or the construction thereof shall be deeded to CITY and recorded prior to construction of the Project. 7. DEVELOPER and CITY Responsibility for Costs. Because the DEVELOPER will construct sanitary sewer improvements, as shown on Exhibit "B", at the request of the CITY, it is mutually agreed that the cost of the Project will be reimbursed as set forth herein," subject to actual cost verification by City. DEVELOPER shall fund 100% of the cost of the Project, estimated at $1,717,484.31, as detailed in Paragraph 10 below, with reimbursement from the CITY in accordance with the provisions of this Agreement. CITY warrants to DEVELOPER that it has sufficient funds on hand for payment of its shaze of the costs pursuant to the terms of this Agreement. 8. Change Orders to Construction Contract. DEVELOPER shall obtain the written approval of CITY before approving any change order to the construction contract. In the event of a change order, CITY and DEVELOPER shall execute an amendment to this Agreement to record the amount of the change order to be reimbursed to DEVELOPER, if any. The project management fee to Primeland Development Company, L.L.P. for any change order may be four (4%) percent of any additional project costs if determined appropriate by the CITY. 9. Completion of the Protect. A. Upon final completion of the Project, DEVELOPER shall furnish to CITY written certification that the Project has been completed in accordance with the approved plans. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 3 of 13 • Within fifteen (15) days after delivery of the certificate of completion, CITY shall either accept the same or provide a written itemization of those matters it reasonably finds to be non-conforming with the approved plans, in which case DEVELOPER shall promptly cause the remediation of all non-conforming matters by the contractors. DEVELOPER shall not be liable for any defaults, omissions, or failures of the contractors unless DEVELOPER failed to exercise reasonable care in the performance of its duties. DEVELOPER warrants to the CITY that it will perform its duties pursuant to this agreement with reasonable care. B. Upon completion of the Project, DEVELOPER shall deliver to CITY comprehensive as-built drawings for the Project, signed and stamped by a licensed professional engineer, in both a reproducible, printed format, on both mylar and in electronic files in AutoCAD format. C. Upon completion of the Project, DEVELOPER shall complete all paperwork necessary to assign to CITY the contractor's one (1) year warranty of the work and materials on the Project. D. Upon completion of the Project, DEVELOPER shall represent and warrant that the Project is free and clear of all liens and encumbrances not created by or with the written consent of CITY. 10. Reimbursement to DEVELOPER. A. Estimated Total Reimbursement. Because DEVELOPER will construct the Project, CITY shall reimburse to DEVELOPER 100% of project costs, with the total reimbursement to the DEVELOPER estimated at $1,717.484.31. The estimated total reimbursement for the North Black Cat Trunk Sewer is as follows: 1. Construction Bid (Brown Construction) $1,578,937.31 2. Project Management (Primeland Development) $ 65,000.00 3. Engineering $ 60,000.00 4. Survey $ 9,300.00 5. Testing and inspection verification $ 4,250.00 Total $1,717,487.31 B. Method of Payment. To receive payment, DEVELOPER will provide CITY with a written invoice for each Reimbursement Payment. Upon receipt of such invoice, CITY will pay such invoice within forty-five (45) days after receipt, provided that DEVELOPER is in compliance with all other terms and conditions of this Agreement. The invoice from DEVELOPER shall have attached to it all invoices and billings from contractors, engineers, and expenses of contract management verifying the total actual project costs for which DEVELOPER is seeking a Reimbursement Payment. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 4 of 13 C. Timius of Reimbursement Payment. CITY shall reimburse DEVELOPER for eighty (80%) percent of the CITY's reimbursement amount as set forth in this Agreement, subject to written change orders approved by the CITY as herein set forth, upon substantial completion of the Project. The remaining twenty (20%) percent shall be paid by the CITY no later than forty-five (45) days from the date of final completion and acceptance. "Substantial completion" is defined for the purposes of this Agreement to mean that stage in the process of the work when the work is sufficiently completed in accordance with this Agreement so that the CITY can utilize the work for its intended use. If a dispute arises between the CITY and DEVELOPER with regard to any particular issue or matter, the CITY shall not withhold payment of those amounts not in dispute. 11. Compliance with Laws. A. In constructing and installing the Project on and/or within its property, DEVELOPER, at its sole expense, shall comply with any and all laws, orders and regulations of Federal, State and local authorities. It shall be the CITY's responsibility and sole expense to obtain any and all licenses or permits which maybe required for or in the course of the performance of this Agreement. B. Upon connection to the City of Meridian sanitary sewer system, DEVELOPER shall abide by all applicable CITY laws, rules and regulations pertaining to sanitary sewer systems. 12. Indemnification and Insurance. DEVELOPER shall include in the contracts between DEVELOPER and the contractors the indemnification and insurance requirements as set forth in this paragraph. The contractors shall indemnify and save and hold harmless CITY and DEVELOPER from and for any and all losses, claims, actions, judgments for damages, and/or injury to persons or property and losses and expenses caused or incurred by the contractors, their servants, agents, employees, guests, and/or business invitees, and not caused by or arising out of tortious conduct of CITY or its employees or its DEVELOPER. In addition, the contractors shall maintain, and specifically agrees that it will maintain, throughout the pendency of this Agreement, liability insurance in which CITY and DEVELOPER shall be named insured in the minimum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. The limits of such insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless CITY and DEVELOPER, and if CITY and DEVELOPER become liable for an amount in excess of the insurance limits herein provided the contractors shall provide CITY and DEVELOPER with a certificate of insurance or other proof of insurance evidencing the contractor's compliance with the requirements of this paragraph by filing such proof of insurance with the City Clerk. In the event the insurance minimums of the Idaho Tort Claims Act are changed, CITY shall notify the contractors of such change, and the contractors shall immediately submit proof of compliance with the changed limit. CITY hereby indemnifies and saves and holds harmless DEVELOPER from and for any and all losses, claims, actions, judgments for damages, and/or injury to persons or property and losses and expenses caused or incurred by the CITY, its servants, agents, employees, and those parties under COOPERATIVE CONSTRUCTION AND REIlVIBURSEMENT AGREEMENT -Page 5 of 13 • • the control or direction of the CITY. The duty to indemnify shall also include the duty to defend DEVELOPER at the CITY's cost. 13. No Assignment. DEVELOPER shall not assign any portion of this Agreement or any privilege here under, either voluntarily or involuntarily, without the prior written consent of the CITY, which consent shall not be unreasonably withheld. 14. Remedies upon Default. A. Default by DEVELOPER. In addition to such other remedies at law or in equity that CITY may have, in the event DEVELOPER fails or neglects to perform its obligations under the terms and provisions of this Agreement in the time and manner required herein, CITY may withhold any reimbursement due to DEVELOPER hereunder until such default is corrected to the satisfaction of CITY. Any withholding of reimbursement shall only be for the amount in dispute and the CITY shall have no right to withhold funds that are not in dispute between the parties. B. Default by CITY. In the event CITY fails or neglects to perform its obligations under the terms and provisions of this Agreement in the time and manner required herein, DEVELOPER shall be entitled to all remedies available at law or in equity. C. Notice of Default. If either the DEVELOPER or the CITY claims the other is in default of a provision of this Agreement, they shall give a ten (10) day notice of default to the other party and the other parry shall thereafter have ten (10) days to cure the default. 15. Attorney Fees. Should either parry find it necessary to employ an attorney for representation in any action seeking enforcement of any provision of this Agreement, or to recover damages for breach of this Agreement, or to resolve any disagreement as to the interpretation of this Agreement, the unsuccessful party in any final judgment or award entered pursuant to such action shall reimburse the prevailing party for all reasonable costs, charges and expenses, including attorneys' fees expended or incurred by the prevailing party in connection therewith and in connection with any appeal, and the same may be included in such judgment or award. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 16. Notices. Any notice desired by the parties and/or required by this Agreement shall be sent via United States Mail, registered or certified mail, postage prepaid, return receipt requested, and shall be addressed as follows: CITY: Meridian City Engineer City of Meridian 200 E. Carlton, Suite #101 Meridian, Idaho 83642 with copy to: COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 6 of 13 • • City Clerk City of Meridian 33 E. Idaho Ave. Meridian, Idaho 83642 All parties constituting DEVELOPER: c1o Primeland Development Company, L.L.P. Attn: Frank Varriale, President Varriale Construction, Inc., Managing Partner 3120 West Belltower, Suite 100 Meridian, Idaho 83642 And: c/o Derick O'Neill, Managing Member Treehaven, LLC 2242 E. Riverwalk Drive, Suite 200 Boise, Idaho 83706 And: c/o David Turnbull Brighton Development, Inc. 12601 West Explorer Drive, Suite 200 Boise, Idaho 83713 Such notice shall be deemed delivered if and when delivery is accepted or three (3) days after deposit in the United States Mail. Either party shall have the right to change its address by delivering to the other party a written notification thereof in accordance with the requirements of this section. 17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho and the ordinances of the City of Meridian. 18. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of this Agreement as if the exhibits were set forth in their entirety in this Agreement. 19. Entire Agreement. This Agreement and the exhibits hereto constitute the full and entire understanding and agreement between the parties with regard to the transaction contemplated herein, and no parry shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein. 20. Definition of CITY's Property. The term "CITY's Property" in the Agreement shall mean the parcels shown on Exhibit "A" attached hereto. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 7 of 13 • • 21. Bindin Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors and assigns, and shall survive any transfer by DEVELOPER of DEVELOPER'S Properly. 22. Reports and Information. At such times and in such forms as the CITY may require, DEVELOPER shall famish to CITY such statements, records, reports, data and infomlation as the CITY may request pertaining to matters covered by this Agreement. Such reports shall be at the sole cost of the CITY and not the DEVELOPER. 23. Audits and Inspections. At any time during business hours and as often as the CITY may deem necessary, there shall be made available to the CITY for examination all of DEVELOPER's records with respect to all matters covered by this Agreement. DEVELOPER shall permit the CITY to audit, examine, and copy such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. All such audits and examinations shall be at the sole cost of the CITY and not the DEVELOPER. 24. Construction and Severability. If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. 25. Approval Required. This Agreement shall not become effective or binding until approved by CITY. IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their duly authorized officers the day and year first above written. DEVELOPER: BRIGHTO DEVELOPMENT, INC. By: David Turnbull, President '~ (o~ G~'l~ g t~ ~Zcx~7 Date TREEHAVEN, LLC , By: Derick O'Neill, Managing Member Dated: ~ ~~7.,b1 O~ COOPERATNE CONSTRUCTION AND REIIvIBURSEMENT AGREEMENT -Page 8 of 13 • PRIMELAND DEVELOPMENT COMPANY, L.L.P. By: Varriale Construction, Inc., Managing Partner By: Frank S. Varriale, President ZL~ Oc.Tz~t3~2 ~ 2ao7 Date CITY: .~_ BY: ~ ~ lp- Z~,© ~ TANIMY de RD, MAYOR Date Attest: ````~~.~~,~ p~F ,v'~GoC /~-~, Ci~, Co~++.c~.G .~ ~ ,~, ~~ .: WILLIAM G. BERG, JR., TY I.~ '~" '"~''~ ~ c ~~ y ~~~ w`~ iii,,'////',//I a+1`,t```,``O\~ ~rrti~ ~i1~N ~®-26`-07 COOPERATIVE CONSTRUCTION AND REIlVIBURSEMENT AGREEMENT -Page 9 of 13 • STATE OF IDAHO ) ss County of Ada ) On this ~~~"day of ~ ~-61~~-~ 2007, before me the undersigned, a Notary Public in and for said State, personally appeared DAVID TURNBULL, known or identified to me to be the President of the corporation Brighton Development, Inc., that executed the instrument or the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. the day and year first above written. .~' CA A• H, ~~ ~; S10T~~y~~ _ ~. ~. Notar~Public affixed my official seal p ~.~G ~~ ~ Residing at: ~ C ~ ~ --~c U B: s~•~. •~~•~p Commission Expires: !~- ~ - Z 0 I ~ T ••....•~~ :~ ~ %ti9 T~ ;pt, ~9 ~~~. STATE OF IDAHO ) ss County of Ada ) IN WITNESS WHEREOF, I have hereunto set my On this ~_day of ~i~~`-~ ~ 2007, before me the undersigned, a Notary Public in and for said State, personally appeared DERICK O'NEILL, known or identified to me to be the Managing Member of the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. KIDhEE1tLY WINKLE ~~ Notary Public Notary Public For d~ State of Idaho Residing at: Commission Expires:, COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 10 of 13 • STATE OF IDAHO ) ss County of Ada ) On this ~~~ day of (~~'~-~j ~ 2007, before me the undersigned, a Notary Public in and for said State, personally appeared FRANK VARRIALE, known or identified to me to be the President of Varriale Construction, Inc., the Managing Member of the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. I{IIv113EItI.Y wINI~LE Notary Public State o4'Idaho STATE OF IDAHO ) ss County of Ada ) Commission Expires: On this 2.~~ day of O(' ~,c~ , 2007, before me the undersigned, a Notary Public in and for said State, personally appeared TAMMY DE WEERD and WILLIAM G. BERG, JR, known to me to be the Mayor and City Clerk of the City of Meridian, Idaho, who executed the within instrument and acknowledged to me that they executed the same on behalf of the City of Meridian IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. •....... .•g M. G;. A _ `i •`S: ~O T9~~~~ Notary Public or Idaho ~ , ; Residing at: ~. IJ~Je.,~~ , (,p '~ ~ Commission Expires: 1('~- I I-L . ~ ~ ~ ~ ~ ; • •'n ~~ • ~. + IC .~ •. COOPERATIVE CONSTRUCTION AND REIlvIBUR.SEMENT AGREEMENT -Page 11 of 13 • EXffiBIT "A" r~- rv'~'p ~~ COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 12 of 13 R-2 ' '; ~f--- ~_,;, -i- _ ~_._, R-8 BRIGHTON DEVELOPMENT INC. I rrnmtLAND DEVELOPMENT CO. LLP ~ ~ i ~ R-4 --~ L-- i i----' ~.J ,, ~I i ~~- i, , -' lJ i~ ,~'-- R1 • a EXHIBIT `B" ~ (~,~ ~ da COOPERATIVE CONSTRUCTION AND REIlVIBURSEMENT AGREEMENT -Page 13 of 13 W ° ~ 8 ~ 5 8 8 8 8 g 8 8 8 8 8 8 8 8 5 8 8 8 8 8 8 8 8 U 6 in n n p 1~1 e^n pp O H O ~p . O rWi N W p p O N pp Q ~.OO u0i .O p O N N O. aQp f~ pp P Nf ~ .p d W W I~ u0i ~+1 n Y1 ~ M ~ p 8 I~ Q Q Q N pp 0 Y C C ~ M N M I .O ~ n ~ N P Q ^ s N Q N N P M .O rl W N f N O U ~ ~ F N N N N N N N N N N N V1 N N N N Vf N N N b O V u0i O^D p O N p O p O p O n p P b aOD ps Q "•' p 8 pQ `+ p 8 p 8 p 8 p 8 p 8 p 8 p S p 8 p 8 p S pp 0 p 8 ~ N 6 0 0 M N r p p 0 p 0 .OW 1~ n n aND P ^ P P P P ~ n ~ M 8 N Q 8 E ~ i W a 0 ~ s a t~'~ f . +1 i N ~ ~ ' ~ N N N N N v N n N N i N N .n N N r ~ `.i ri V ~ N 8 P u0i pp 0 pp 0 pp p pp 0 ~ oo V 8 u01 p 8 8 p .D °m N N N S p 8 p 8 ~ H 8 p 8 U ~ K a ^ 0 .p ^ P N .O M pp1qqp O W Q O YNf 8 .O W p. n ~ O n f~ W pp Q N pp V N ~ Q 1~ p P W p V eWDO ~- ^ of P P W o0 .O .p N W .O p 8 ^ 8 of N P • m N ~ Q ~ P P Ifl W CNO m F M N N N .p P N ~ Q eP N n W M Q .p ^ _ ~ M .p O W m 0 F, ^ Q ^ ~ U ro n u0i eh o N .O 8 p 0 ~ aN0 n °~ n m S g ro W N N 8 S 8 ~ 8 8 8 ~ ~ y F O N ~ vOi N N N 1R W ^ uPi N p . O ^ N C P ~ ^ N .p ~ N .O P N p Q LCa000 ^ Y1 P W uNi W NW .O H ^_ O N N P H N CJ Z N N N N N N N N V f N N N N N n N .D N ~ N N N n N W N r+f N ri N •O ^ N .p V f ~ .n N .D N W pQ O p O 8 p O p O p O p O p 0 p 0 p 0 p 0 p 0 p 0 p O 8 p O p O p O p O p O p O p O p O p O 8 p O p O M W N N O .^O ' ^ I~ N ^ p p O N ^ N W H Q N W 8 N W p ~ WW W 8 N p 8 N p 8 N F 8 8 p o 0 p o 0 p o 8 pp 0 p p 8 p S U C c 6 ~ Q N W ~ W N Q N ^ p 8 aa~~ Q ^ p p Y ~ .Q Q N P N N YY Q N VQQQt Q N OO ~ ~ W Q O N ~- O H S N N N N N N N H ~ U 0 pp 0 pp 0 pp 0 p 0 p 0 p 0 p 0 p 0 p 0 p 0 p 0 p 0 p 0 p 0 p O p O p O p O p O p O p O p O p O 8 p O p O p O ~ S ^ N W ~ r^i ^ ~ V uPi ~ m n N O ^ p p O ~.DD p p O aa00 S S ~ p pp N p pp O V pp .O 8 p pp O vWi ~ cOD 8 O F ~ ,0 I~ I~ P N N ~ ~ O~ Q itl m ? N N N N N ^ y ~ N Q N W n pp 0 pp 0 p O uhf p O p O p O p O p O p O p O p O p O p O p O p O p O p O p O p O p O p O p O p O p O p O V 6 Q I^'1 p Np 4!1 Q ~ pW .O 8 M Oop P ^O I~ pQ Q Yf ~ Q Q O ~ .O ~ ~ ~ N n b P N ~ ~ N pq O 8 P 8 O .O ~ pp O pp O n P U C ~ ~ W P N M n O N N N .O N ~ ~pp ~ Q ~ Q P N .p W rf W O ^ P r+f ~- N W N C O O F J N N N N N N N N N N Vf N N N N N N N N N N V! N N w N N C V N p O p O p 8 n pp O pp O N I~ p O p O N N N p O p O p O p O p O p O p O p O p O p O p O p O p O V y ~ N P p p Q ~ ~ ~~~DOO ~ N n ~ O .^- N ~ ~ ( W p O m pp N 8 ~ p pQ ~ 8 8 P f _ N O ~ . ~ ^ W ~ m p ~ N G O ~ ~/l O N W m O K N N V! N N N N N N N N N ~ ^ N N N W u0i W N M N p 8O p O p O ~ p O p O pQ O p O p O p O p O p O p O p 0 p 0 p 0 p 0 p 0 p 0 p 0 p 0 ~ 6 ~ S O p uPi ~ O ~O 8 W O Y p P S v~ S ~n 8 N N e p C O p@ P ~ r0,~ ~ ~ ~ S ~ .00 N ~ F J F rvi P N ~- ^ N ~ W _ P R N V Q .O N ^W 1~ M I~ f~ Q V ~- P .O O .D N rl ^ N O ^ I~ N Y1 ^ .p V N .D N F V~ N N N N N N N N N N N N N N V f N N V f N N N V h p H ~ po P p 4T1 p O p O p O ~ p 0 p 0 p 0 p 0 p 0 p 0 p 0 p O p O p O p O p O p O p O p O p O p O 6 0 .O O n N N M V ~pp ~ O ~ N V W H n 0 pW 8 8 n p . ~ p p O p N p O p O Z ^ n n O O. O M ~ N N O O of . ' ~ N NQ ~ N N N Z J r V W J LPL 1 N W J l~ J LL J W J LL J W J LL J IL J li J Q W Q W Q W Q W Q W Q W Q W Q W v~ J J Q W Q W J (n ~ ~ N O n ~ N N H P p W N O ~ Q `-' ~ pp O N P .p rvl ^ P ^ ^ N ^ W = I~ Q ^ I~ C a T V V L 3 c a v, p ' o ~ a a c ~ w , , [ . Q y Y ~ ~ N N O N O ~ Q t= 9 3 q a X Bo 6 o 0 o O 'v C io 6 p ~ v y O ^ m N m N m ~^ m N m ~^ ce f~ ~ ~ ~ v N :o o v rv 10 n a c a ~ a ., y Y U C C N ^ N N 3 F H F'- F~ H F ~ ~ N A 1 6 6 1 1 6 6 p o a p .O .O ~ ~ y ^ ~ V F U ~ H - ~ ~ ~ '~' ~ _~ G ~ Q N Q N N N N ~ N o N N L W L m L w L w L m L C <q c<q ` ~ o V E C ~ a M d u r u ~ m $' u a a n a a a ~ f ~ ~ ~ ~ ~ ~ ~ °' °1 d q m u ~ '° N '° ~ N o m ° a `w a w` a `w a ~ i 6 ~i a `w a `w `w `w ~ i ~+ ~i `w ~ 'Sc G o ~ r ~ , r m z ~ s q f S' C N . a ~ $ N ; ; N N ; ; N W W ; ; N ~ ; ; N ; ; N N ~ N «O V U L CC O y g A Q C~ ~ d a A A ~ ~ ~ f, > ~ ? T ~ ~ ~ ~ > L ~ ~ ~ U ~ U ` H ~ ~ 3 = a + 10 ~ E "y T e w~ T~ a y~ 0 ` O 'S ` Y 'S N Y 'S N .+ 'S N + 'S 10 + 'S N 'S N 3 ~C 3 C 3 C 3 C 3 C 3 C c C m ~ ~ . - d ~ o E J - H H~ m m l7 l7 U' l7 !:) U' U' vii N N N N vii U C V ~ K K VI O O O r Z ~ ^ Q ^ C ^ li .n LL n ILL ^ Q M Q ^ m ^ m ^ m ^ m .- m ^ W ^ W ^ !d ^ 00 ^ 00 ^ (L .- W ^ 00 ^ LL I ^ L ^ Q ^ Q I .- LL .- Q ^ Q U Z a~ Q N V Q n Q n Q n R ap Q W R ' R V V Q Q Q Q N p N V N Q N Q N Q N Q N Q Q Q O Q O Q N . aT O Q W O N O M D O O O O O O O O O O O O O O O ~ O ~ ~ D O O Q N H W W yLLj N N N N VI O Q (O 10 6 ~ 6 d N O N W O N O W m {") W W N IA O N W A • \J Bid Amount Primeland Management Engineering Surveying Testing & Inspection Tota I Total PM Costs • $1,578,937.37 $65,000.00 $60,000.00 $9,300.00 $4,250.00 $1,717,487.37 $138,550.00 9% • COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT NORTH BLACK CAT TRUNK SEWER -LINE A THIS AGREEMENT made this day of , 2007, by and between the CITY OF MERIDIAN, a municipal corporation, hereinafter called "CITY," and Brighton Development Inc., an Idaho corporation; Treehaven, LLC, and Idaho limited liability company; and Primeland Development Company, L.L.P., an Idaho limited liability partnership (BTP), hereinafter called "DEVELOPER": WITNESSETH: WHEREAS, DEVELOPER owns land inside the corporate limits of the City of Meridian and desires to construct a sanitary sewer system to be owned, operated, and maintained by CITY to serve DEVELOPER's property and future City of Meridian property, shown on Exhibit "A" and has requested reimbursement for a portion of the sanitary sewer system; WHEREAS, upon recommendation of the Public Works Department, the City Council of CITY accepted and approved the proposal of DEVELOPER to construct the sanitary sewer system, subject to all conditions hereinafter provided by this Agreement; NOW THEREFORE, in consideration of the foregoing premises, CITY and DEVELOPER hereby agree: 1. Preparation of Plans. CITY has prepared plans and specifications, drawings, instructions, bid proposal and all other contract documents for the construction and installation of sanitary sewer system (hereinafter called "Project"), shown on Exhibit "B," including rights-of--way, grades and elevation, and materials used in the construction and installation of said trunk sanitary sewer lines. DEVELOPER shall not be liable for any damages or delays caused by the CITY's plans and specifications, drawings, instructions, bid proposal and other contract documents prepared by the CITY. 2. Final Plans. CITY and DEVELOPER shall acknowledge in writing the final plans, and said plans shall not thereafter be modified in any material way unless such modifications are approved in writing signed by CITY and DEVELOPER. The final plans and specifications are attached hereto as Exhibit "B" and are made a part of this contract. 3. Construction of the Project. A. DEVELOPER shall install and construct the Project in compliance with and subject to all conditions provided herein. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 1 of 13 i • B. CITY, with the cooperation from the DEVELOPER, shall endeavor to obtain and/or provide engineering, permanent and temporary easements adequate for timely completion of the Project at no cost to DEVELOPER and DEVELOPER will provide all surveying and contract administration with the contractors which shall be considered a cost of the project. C. DEVELOPER shall undertake and/or provide all testing, sampling and other normally conducted measures for quality controUquality assurance regazding any and all installed systems and shall be considered a cost of the project. D. CITY shall provide inspection services for the construction of the Project in accordance with CITY standazds at its cost. 4. Solicitation of Bids. DEVELOPER shall award the construction contract to the lowest qualified bidder, after obtaining approval from the City Council of the successful bidder and bid amount which approval shall not be unreasonably withheld, delayed or conditioned. The bids shall be administered in accordance with state public bidding laws pursuant to the CITY's purchasing guidelines. 5. Contract Terms. DEVELOPER shall provide CITY with a copy of the executed construction contract(s). All construction contract(s) shall include, at a minimum, the following provisions: A. A requirement that the contractor provide payment and performance bonds naming CITY as an additional beneficiary as required by the Public Works Contractors License Act, Chapter 19, Title 54 of the Idaho Code. B. A requirement that the successful bidder be licensed as a public works contractor. C. A requirement that the construction of the Project shall be in accordance with the approved designs, plans, and specifications and be Substantially Complete within twenty-four (24) weeks from the date DEVELOPER issues to the contractor written notice to proceed. For the purposes of this Agreement, the term "Substantially Complete" shall mean that the Project and all components thereof can be safely used for their intended purpose(s) despite the fact that some item or items remain uncompleted. D. A provision that the time for Substantial Completion will only be extended by (a) acts of God, (b) war, (c) delays caused by CITY, or (d) any request for extension of time approved in writing, by CITY. E. A requirement that the contractor shall pay liquidated damages of Five Hundred Dollars and 00/100 ($500.00) per day for each day that Substantial Completion is delayed beyond twenty-four (24) weeks from the date DEVELOPER issues written notice to proceed, or no later than May 1, 2008, or beyond the extended date as allowed herein. F. A requirement that the contractor shall maintain liability insurance insuring against bodily injury or death with limits of not less than One Million Dollars ($1,000,000.00) COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 2 of 13 • • per person and per occurrence, and property damage with a limit of One Million Dollars ($1,000,000.00) per occurrence, naming both DEVELOPER and CITY as co-insureds. G. A provision that the contractor shall indemnify CITY and DEVELOPER from any and all claims by third persons arising out of the performance of the contract. H. A provision that the contractor shall comply with all applicable laws, rules, and regulations, and that the contractor shall secure all applicable permits and pay all applicable fees. I. A provision providing at least a one (1) year warranty on the operation and materials of the Project from the contractors, which warranty shall be assignable to CITY. J. DEVELOPER shall have the right to rely upon instructions and the authority of the City Engineer. 6. Conditions Precedent to Execution of Construction Contract(s). Prior to execution of any construction contract, the following conditions shall be satisfied: A. DEVELOPER shall obtain written approval from CITY of the form and terms of such construction contract, including but not limited to DEVELOPER's failure to obtain a construction contract that contains the provisions required by this Agreement, but which approval shall not otherwise be unreasonably withheld or delayed. B. Any easements required for the Project or the construction thereof shall be deeded to CITY and recorded prior to construction of the Project. 7. DEVELOPER and CITY Responsibility for Costs. Because the DEVELOPER will construct sanitary sewer improvements, as shown on Exhibit "B", at the request of the CITY, it is mutually agreed that the cost of the Project will be reimbursed as set forth herein," subject to actual cost verification by City. DEVELOPER shall fund 100% of the cost of the Project, estimated at $1,717,484.31, as detailed in Paragraph 10 below, with reimbursement from the CITY in accordance with the provisions of this Agreement. CITY warrants to DEVELOPER that it has sufficient funds on hand for payment of its share of the costs pursuant to the terms of this Agreement. 8. Change Orders to Construction Contract. DEVELOPER shall obtain the written approval of CITY before approving any change order to the construction contract. In the event of a change order, CITY and DEVELOPER shall execute an amendment to this Agreement to record the amount of the change order to be reimbursed to DEVELOPER, if any. The project management fee to Primeland Development Company, L.L.P. for any change order may be four (4%) percent of any additional project costs if determined appropriate by the CITY. 9. Completion of the Project. A. Upon final completion of the Project, DEVELOPER shall furnish to CITY written certification that the Project has been completed in accordance with the approved plans. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 3 of 13 Within fifteen (15) days after delivery of the certificate of completion, CITY shall either accept the same or provide a written itemization of those matters it reasonably finds to be non-conforming with the approved plans, in which case DEVELOPER shall promptly cause the remediation of all non-conforming matters by the contractors. DEVELOPER shall not be liable for any defaults, omissions, or failures of the contractors unless DEVELOPER failed to exercise reasonable care in the performance of its duties. DEVELOPER warrants to the CITY that it will perform its duties pursuant to this agreement with reasonable care. B. Upon completion of the Project, DEVELOPER shall deliver to CITY comprehensive as-built drawings for the Project, signed and stamped by a licensed professional engineer, in both a reproducible, printed format, on both mylar and in electronic files in AutoCAD format. C. Upon completion of the Project, DEVELOPER shall complete all paperwork necessary to assign to CITY the contractor's one (1) year warranty of the work and materials on the Project. D. Upon completion of the Project, DEVELOPER shall represent and warrant that the Project is free and clear of all liens and encumbrances not created by or with the written consent of CITY. 10. Reimbursement to DEVELOPER. A. Estimated Total Reimbursement. Because DEVELOPER will construct the Project, CITY shall reimburse to DEVELOPER 100% of project costs, with the total reimbursement to the DEVELOPER estimated at $1,717,484.31. The estimated total reimbursement for the North Black Cat Trunk Sewer is as follows: 1. Construction Bid (Brown Construction) $1,578,937.31 2. Project Management (Primeland Development) $ 65,000.00 3. Engineering $ 60,000.00 4. Survey $ 9,300.00 5. Testing and inspection verification $ 4,250.00 Total $1,717,487.31 B. Method of Payment. To receive payment, DEVELOPER will provide CITY with a written invoice for each Reimbursement Payment. Upon receipt of such invoice, CITY will pay such invoice within forty-five (45) days after receipt, provided that DEVELOPER is in compliance with all other terms and conditions of this Agreement. The invoice from DEVELOPER shall have attached to it all invoices and billings from contractors, engineers, and expenses of contract management verifying the total actual project costs for which DEVELOPER is seeking a Reimbursement Payment. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 4 of 13 • C. Timing of Reimbursement Payment. CITY shall reimburse DEVELOPER for eighty (80%) percent of the CITY's reimbursement amount as set forth in this Agreement, subject to written change orders approved by the CITY as herein set forth, upon substantial completion of the Project. The remaining twenty (20%) percent shall be paid by the CITY no later than forty-five (45) days from the date of final completion and acceptance. "Substantial completion" is defined for the purposes of this Agreement to mean that stage in the process of the work when the work is sufficiently completed in accordance with this Agreement so that the CITY can utilize the work for its intended use. If a dispute arises between the CITY and DEVELOPER with regard to any particular issue or matter, the CITY shall not withhold payment of those amounts not in dispute. 1 1. Compliance with Laws. A. In constructing and installing the Project on and/or within its property, DEVELOPER, at its sole expense, shall comply with any and all laws, orders and regulations of Federal, State and local authorities. It shall be the CITY's responsibility and sole expense to obtain any and all licenses or permits which maybe required for or in the course of the performance of this Agreement. B. Upon connection to the City of Meridian sanitary sewer system, DEVELOPER shall abide by all applicable CITY laws, rules and regulations pertaining to sanitary sewer systems. 12. Indemnification and Insurance. DEVELOPER shall include in the contracts between DEVELOPER and the contractors the indemnification and insurance requirements as set forth in this paragraph. The contractors shall indemnify and save and hold harmless CITY and DEVELOPER from and for any and all losses, claims, actions, judgments for damages, and/or injury to persons or property and losses and expenses caused or incurred by the contractors, their servants, agents, employees, guests, and/or business invitees, and not caused by or arising out of tortious conduct of CITY or its employees or its DEVELOPER. In addition, the contractors shall maintain, and specifically agrees that it will maintain, throughout the pendency of this Agreement, liability insurance in which CITY and DEVELOPER shall be named insured in the minimum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. The limits of such insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless CITY and DEVELOPER, and if CITY and DEVELOPER become liable for an amount in excess of the insurance limits herein provided the contractors shall provide CITY and DEVELOPER with a certificate of insurance or other proof of insurance evidencing the contractor's compliance with the requirements of this paragraph by filing such proof of insurance with the City Clerk. In the event the insurance minimums of the Idaho Tort Claims Act are changed, CITY shall notify the contractors of such change, and the contractors shall immediately submit proof of compliance with the changed limit. CITY hereby indemnifies and saves and holds harmless DEVELOPER from and for any and all losses, claims, actions, judgments for damages, and/or injury to persons or property and losses and expenses caused or incurred by the CITY, its servants, agents, employees, and those parties under COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 5 of 13 the control or direction of the CITY. The duty to indemnify .shall also include the duty to defend DEVELOPER at the CITY's cost. 13. No Assignment. DEVELOPER shall not assign any portion of this Agreement or any privilege here under, either voluntarily or involuntarily, without the prior written consent of the CITY, which consent shall not be unreasonably withheld. 14. Remedies upon Default. A. Default by DEVELOPER. In addition to such other remedies at law or in equity that CITY may have, in the event DEVELOPER fails or neglects to perform its obligations under the terms and provisions of this Agreement in the time and manner required herein, CITY may withhold any reimbursement due to DEVELOPER hereunder until such default is corrected to the satisfaction of CITY. Any withholding of reimbursement shall only be for the amount in dispute and the CITY shall have no right to withhold funds that are not in dispute between the parties. B. Default by CITY. In the event CITY fails or neglects to perform its obligations under the terms and provisions of this Agreement in the time and manner required herein, DEVELOPER shall be entitled to all remedies available at law or in equity. C. Notice of Default. If either the DEVELOPER or the CITY claims the other is in default of a provision of this Agreement, they shall give a ten (10) day notice of default to the other party and the other party shall thereafter have ten (10) days to cure the default. 15. Attorney Fees. Should either party find it necessary to employ an attorney for representation in any action seeking enforcement of any provision of this Agreement, or to recover damages for breach of this Agreement, or to resolve any disagreement as to the interpretation of this Agreement, the unsuccessful party in any final judgment or award entered pursuant to such action shall reimburse the prevailing party for all reasonable costs, charges and expenses, including attorneys' fees expended or incurred by the prevailing party in connection therewith and in connection with any appeal, and the same may be included in such judgment or award. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 16. Notices. Any notice desired by the parties and/or required by this Agreement shall be sent via United States Mail, registered or certified mail, postage prepaid, return receipt requested, and shall be addressed as follows: CITY: Meridian City Engineer City of Meridian 200 E. Carlton, Suite #101 Meridian, Idaho 83642 with copy to: COOPERATIVE CONSTRUCTION AND REnvIBURSEMENT AGREEMENT -Page 6 of 13 • City Clerk City of Meridian 33 E. Idaho Ave. Meridian, Idaho 83642 All parties constituting DEVELOPER: And: And: c/o Primeland Development Company, L.L.P. Attn: Frank Varriale, President Varriale Construction, Inc., Managing Partner 3120 West Belltower, Suite 100 Meridian, Idaho 83642 c/o Derick O'Neill, Managing Member Treehaven, LLC 2242 E. Riverwalk Drive, Suite 200 Boise, Idaho 83706 c/o David Turnbull Brighton Development, Inc. 12601 West Explorer Drive, Suite 200 Boise, Idaho 83713 Such notice shall be deemed delivered if and when delivery is accepted or three (3) days after deposit in the United States Mail. Either party shall have the right to change its address by delivering to the other party a written notification thereof in accordance with the requirements of this section. 17. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho and the ordinances of the City of Meridian. 18. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of this Agreement as if the exhibits were set forth in their entirety in this Agreement. 19. Entire Agreement. This Agreement and the exhibits hereto constitute the full and entire understanding and agreement between the parties with regard to the transaction contemplated herein, and no parry shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein. 20. Definition of CITY's Property. The term "CITY's Property" in the Agreement shall mean the parcels shown on Exhibit "A" attached hereto. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 7 of 13 21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors and assigns, and shall survive any transfer by DEVELOPER of DEVELOPER'S Property. 22. Reports and Information. At such times and in such forms as the CITY may require, DEVELOPER shall furnish to CITY such statements, records, reports, data and information as the CITY may request pertaining to matters covered by this Agreement. Such reports shall be at the sole cost of the CITY and not the DEVELOPER. 23. Audits and Inspections. At any time during business hours and as often as the CITY may deem necessary, there shall be made available to the CITY for examination all of DEVELOPER's records with respect to all matters covered by this Agreement. DEVELOPER shall permit the CITY to audit, examine, and copy such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. All such audits and examinations shall be at the sole cost of the CITY and not the DEVELOPER. 24. Construction and Severability. If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. 25. Approval Required. This Agreement shall not become effective or binding until approved by CITY. IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their duly authorized officers the day and year first above written. DEVELOPER: BRIGHTON DEVELOPMENT, INC. Bv: David Turnbull, President TREEHAVEN,LLC By: Dated: Derick O'Neill, Managing Member Date COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 8 of 13 • PRIMELAND DEVELOPMENT COMPANY, L.L.P. By: Varriale Construction, Inc., Managing Partner By: Frank S. Varriale, President Date CITY: BY: TAMMY de WEERD, MAYOR C~ Date Attest: WILLIAM G. BERG, JR., CITY CLERK COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 9 of 13 • STATE OF IDAHO ) ss County of Ada ) On this day of 2007, before me the undersigned, a Notary Public in and for said State, personally appeared DAVID TURNBULL, known or identified to me to be the President of the corporation Brighton Development, Inc., that executed the instrument or the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public For Idaho Residing at: Commission Expires:_ STATE OF IDAHO ) ss County of Ada ) On this day of 2007, before me the undersigned, a Notary Public in and for said State, personally appeared DERICK O'NEILL, known or identified to me to be the Managing Member of the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public For Idaho Residing at: Comiriission Expires:_ COOPERATIVE CONSTRUCTION AND REIl~IBURSEMENT AGREEMENT -Page 10 of 13 STATE OF IDAHO ) ss County of Ada ) On this day of 2007, before me the undersigned, a Notary Public in and for said State, personally appeared FRANK VARRIALE, known or identified to me to be the President of Varriale Construction, Inc., the Managing Member of the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public For Idaho Residing at: Commission Expires:_ STATE OF IDAHO ) ss County of Ada ) On this day of , 2007, before me the undersigned, a Notary Public in and for said State, personally appeazed TAMMY DE WEERD and WILLIAM G. BERG, JR, known to me to be the Mayor and City Clerk of the City of Meridian, Idaho, who executed the within instrument and acknowledged to me that they executed the same on behalf of the City of Meridian IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public For Idaho Residing at: Commission Expires:_ COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 11 of 13 RUT R-8 R-z TREEHAVEN, LLC R-15 R-15 '.,C,,~n_ ... R-8 BRIGHTON DEVELOPMENT INC. R-z ~-- ~ ~~ L_ ~i ~~ ~ '_J~ ~ ~.J ~`___ %% • • Tara Green From: Bill Nary Sent: Friday, September 28, 200710:57 AM To: Will Berg; Sharon Smith; Tara Green Subject: FW: Davison, Copple, Copple and Cox Attachments: SCAN6102_000.pdf SCAN6102_0 OO.pdf (1 MB) Can we add this to the agenda for Tuesday. I have asked for a clean copy and signatures, but I wanted to get it listed.. Bill Nary City Attorney/HR Director City of Meridian 703 Main Street Meridian, ID 8364'2 208.898.5506 or 208.898-5503 (ofi'ice) 208.884.8723 (fax) -----Original Message----- From: tccopple@davisoncopple.com [mailto:tccopple@davisoncopple.com] Sent: Friday, September 28, 2007 4:32 AM To: Bill Nary; Ted Baird; ghvcfrank@gwest.net Subject: Davison, Copple, Copple and Cox • Davison, .Copple, Copple & Cox, zr.P Attorneys at Law Direct Contact: 199 North Capitol Boulevard, #600 Post Office Box 1583 Terry C. Copple Boise, Idaho 83701 Direct: (208) 342-3766 E-Mail: tccopple(a~davisoncopple.com http://www.davisoncopple.com September 28, 2007 SENT VIA E-MAIL narybla~.tneridiancit +}~org bairdt(a~merdiancity.org William L.M. Nary, City Attorney Theodore W. Baird, Deputy City Attorney City of Meridian 703 North Main Street Meridian, Idaho 83642 Telephone: (208) 342-3658 Facsimile: (208) 386-9428 Re: Cooperative Construction and Reimbursement Agreement Dear Bill and Ted: Enclosed herewith please find a revised redlined copy of the Cooperative Construction and Reimbursement Agreement along with the original version for signature by the parties. If you have any questions concerning the enclosed, please do not hesitate to contact this office. TCC/tap Enclosures cc: Frank Varriale via a-mail Very truly yours, DAVISON, COPPLE, COPPLE & COX, LLP ~~ By: / Terry C. Co , of the firm • • COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT NORTH BLACK CAT TRUNK SEWER -LINE A THIS AGREEMENT made this day of , 2007, by and between the CITY OF MERIDIAN, a municipal corporation, hereinafter called "CITY," and Brighton Development Inc., an Idaho corporation; Treehaven, LLC, and Idaho limited liability company; and Primeland Development Group, LLC, an Idaho limited liability company (BTP), hereinafter called "DEVELOPER": WITNES SETH: WHEREAS, DEVELOPER owns land inside the corporate limits of the City of Meridian and desires to construct a sanitary sewer system to be owned, operated, and maintained by CITY to serve DEVELOPER's properly and future City of Meridian property, shown on Exhibit "A" and Exhibit "C," and has requested reimbursement for a portion of the sanitary sewer system; WHEREAS, upon recommendation of the Public Works Department, the City Council of CITY accepted and approved the proposal of DEVELOPER to construct the sanitary sewer system, subject to all conditions hereinafter provided by this Agreement; NOW THEREFORE, in consideration of the foregoing premises, CITY and DEVELOPER hereby agree: Preparation of Plans. CITY has prepared plans and specifications, drawings, instructions, bid proposal and all other contract documents for the construction and installation of sanitary sewer system (hereinafter called "Project"), shown on Exhibit "B," including rights-of--way, grades and elevation, and materials used in the construction and installation of said trunk sanitary sewer lines. DEVELOPER shall not be liable for any damages or delays caused by the CITY's plans and specifications, drawings, instructions, bid proposal and other contract documents prepared by the CITY. 2. Final Plans. CITY and DEVELOPER shall acknowledge in writing the final plans, and said plans shall not thereafter be modified in any material way unless such modifications are approved in writing signed by CITY and DEVELOPER. The final plans and specifications are attached hereto as Exhibit "D" and are made a part of this contract. 3. Construction of the Project. A. DEVELOPER shall install and construct the Project in compliance with and subject to all conditions provided herein. COOPERATIVE CONSTRUCTION AND REIlVIBURSEMENT AGREEMENT -Page 1 of 14 • s B. CITY, with the cooperation from the DEVELOPER, shall endeavor to obtain and/or provide engineering, permanent and temporary easements adequate for timely completion of the Project at no cost to DEVELOPER and DEVELOPER will provide all surveying and contract administration with the contractors which shall be considered a cost of the project. C. DEVELOPER shall undertake and/or provide all testing, sampling and other normally conducted measures for quality control/quality assurance regarding any and all installed systems and shall be considered a cost of the project. D. CITY shall provide inspection services for the construction of the Project in accordance with CITY standards at its cost. 4. Solicitation of Bids. DEVELOPER shall award the construction contract to the lowest qualified bidder, after obtaining approval from the City Council of the successful bidder and bid amount which approval shall not be unreasonably withheld, delayed or conditioned. The bids shall be administered in accordance with state public bidding laws pursuant to the CITY's purchasing guidelines. 5. Contract Terms. DEVELOPER shall provide CITY with a copy of the executed construction contract(s). All construction contract(s) shall include, at a minimum, the following provisions: A. A requirement that the contractor provide payment and performance bonds naming CITY as an additional beneficiary as required by the Public Works Contractors License Act, Chapter 19, Title 54 of the Idaho Code. B. A requirement that the successful bidder be licensed as a public works contractor. C. A requirement that the construction of the Project shall be in accordance with the approved designs, plans, and specifications and be Substantially Complete within (_) weeks from the date DEVELOPER issues to the contractor written notice to proceed. For the purposes of this Agreement, the term "Substantially Complete" shall mean that the Project and all components thereof can be safely used for their intended purpose(s) despite the fact that some item or items remain uncompleted. D. A provision that the time for Substantial Completion will only be extended by (a) acts of God, (b) war, (c) delays caused by CITY, or (d) any request for extension of time approved in writing by CITY. E. A requirement that the contractor shall pay liquidated damages of ($ )per day for each day that Substantial Completion is delayed beyond ~) weeks from the date DEVELOPER issues written notice to proceed, or no later than , 2007, or beyond the extended date as allowed herein. F. A requirement that the contractor shall maintain liability insurance insuring against bodily injury or death with limits of not less than One Million Dollars ($1,000,000.00) COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 2 of 14 • per person and per occurrence, and property damage with a limit of One Million Dollars ($1,000,000.00) per occurrence, naming both DEVELOPER and CITY as co-insureds. G. A provision that the contractor shall indemnify CITY and DEVELOPER from any and all claims by third persons arising out of the performance of the contract. H. A provision that the contractor shall comply with all applicable laws, rules, and regulations, and that the contractor shall secure all applicable permits and pay all applicable fees. I. A provision providing at least a one (1) year warranty on the operation and materials of the Project from the contractors, which warranty shall be assignable to CITY. J. DEVELOPER shall have the right to rely upon instructions and the authority of the City Engineer. 6. Conditions Precedent to Execution of Construction Contract(s). Prior to execution of any construction contract, the following conditions shall be satisfied: A. DEVELOPER shall obtain written approval from CITY of the form and terms of such construction contract, including but not limited to DEVELOPER's failure to obtain a construction contract that contains the provisions required by this Agreement, but which approval shall not otherwise be unreasonably withheld or delayed. B. Any easements required for the Project or the construction thereof shall be deeded to CITY and recorded prior to construction of the Project. 7. DEVELOPER and CITY Responsibility for Costs. Because the DEVELOPER will construct sanitary sewer improvements, as shown on Exhibit "B", at the request of the CITY, it is mutually agreed that the cost of the Project will be reimbursed as depicted in Exhibit "C," subject to actual cost verification by City. DEVELOPER shall fund 100% of the cost of the Project, estimated at $1,500,000.00, with reimbursement from the CITY in accordance with the provisions. of this Agreement. CITY warrants to DEVELOPER that it has sufficient funds on hand for payment of its share of the costs pursuant to the terms of this Agreement. 8. Change Orders to Construction Contract. DEVELOPER shall obtain the written approval of CITY before approving any change order to the construction contract. In the event of a change order, CITY and DEVELOPER shall execute an amendment to this Agreement to record the amount of the change order to be reimbursed to DEVELOPER, if any. 9. Completion of the Proiect. A. Upon final completion of the Project, DEVELOPER shall furnish to CITY written certification that the Project has been completed in accordance with the approved plans. Within fifteen (15) days after delivery of the certificate of completion, CITY shall either accept the same or provide a written itemization of those matters it reasonably finds to COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 3 of 14 • • benon-conforming with the approved plans, in which case DEVELOPER shall promptly cause the remediation of all non-conforming matters by the contractors. DEVELOPER shall not be liable for any defaults, omissions, or failures of the contractors unless DEVELOPER failed to exercise reasonable caze in the performance of its duties. DEVELOPER warrants to the CITY that it will perform its duties pursuant to this agreement with reasonable care. B. Upon completion of the Project, DEVELOPER shall deliver to CITY comprehensive as-built drawings for the Project, signed and stamped by a licensed professional engineer, in both a reproducible, printed format, on both mylar and in electronic files in AutoCAD format. C. Upon completion of the Project, DEVELOPER shall complete all paperwork necessary to assign to CITY the contractor's one (1) year warranty of the work and materials on the Project. D. Upon completion of the Project, DEVELOPER shall represent and warrant that the Project is free and clear of ail liens and encumbrances not created by or with the written consent of CITY. 10. Reimbursement to DEVELOPER. A. Estimated Total Reimbursement. Because DEVELOPER will construct the Project, CITY shall reimburse to DEVELOPER 100% of project costs, with the total reimbursement to the DEVELOPER estimated at $_ B. Method of Payment. To receive payment, DEVELOPER will provide CITY with a written invoice for each Reimbursement Payment. Upon receipt of such invoice, CITY will pay such invoice within forty-five (45) days after receipt, provided that DEVELOPER is in compliance with all other terms and conditions of this Agreement. G Timing_of Reimbursement Payment. CITY shall reimburse DEVELOPER for eighty (80%) percent of the CITY's reimbursement amount as set forth in this Agreement, subject to written change orders approved by the CITY as herein set forth, upon substantial completion of the Project. The remaining twenty (20%) percent shall be paid by the CITY no later than forty-five (45) days from the date of final completion and acceptance. "Substantial completion" is defined for the purposes of this Agreement to mean that stage in the process of the work when the work is sufficiently completed in accordance with this Agreement so that the CITY can utilize the work for its intended use. If a dispute arises between the CITY and DEVELOPER with regard to any particulaz issue or matter, the CITY shall not withhold payment of those amounts not in dispute. 11. Compliance with Laws. A. In constructing and installing the Project on and/or within its property, DEVELOPER, at its sole expense, shall comply with any and all laws, orders and regulations of Federal, State and local authorities. It shall be the CITY's responsibility COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 4 of 14 • and sole expense to obtain any and all licenses or permits which may be required for or in the course of the performance of this Agreement. B. Upon connection to the City of Meridian sanitary sewer system, DEVELOPER shall abide by all applicable CITY laws, rules and regulations pertaining to sanitary sewer 5ystemS. 12. Indemnification and Insurance. DEVELOPER shall include in the contracts between DEVELOPER and the contractors the indemnification and insurance requirements as set forth in this paragraph. The contractors shall indemnify and save and hold harmless CITY and DEVELOPER from and for any and all losses, claims, actions, judgments for damages, and/or injury to persons or property and losses and expenses caused or incurred by the contractors, their servants, agents, employees, guests, and/or business invitees, and not caused by or arising out of tortious conduct of CITY or its employees or its DEVELOPER. In addition, the contractors shall maintain, and specifically agrees that it will maintain, throughout the pendency of this Agreement, liability insurance in which CITY and DEVELOPER shall be named insured in the minunum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. The limits of such insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless CITY and DEVELOPER, and if CITY and DEVELOPER become liable for an amount in excess of the insurance limits herein provided the contractors shall provide CITY and DEVELOPER with a certificate of insurance or other proof of insurance evidencing the contractor's compliance with the requirements of this paragraph by filing such proof of insurance with the City Clerk. In the event the insurance minimums of the Idaho Tort Claims Act are changed, CITY shall notify the contractors of such change, and the contractors shall immediately submit proof of compliance with the changed limit. CITY hereby indemnifies and saves and holds harmless DEVELOPER from and for any and all losses, claims, actions, judgments for damages, and/or injury to persons or property and losses and expenses caused or incurred by the CITY, its servants, agents, employees, and those parties under the control or direction of the CITY. The duty to indemnify shall also include the duty to defend DEVELOPER at the CITY's cost. 13. No Assignment. DEVELOPER shall not assign any portion of this Agreement or any privilege here under, either voluntarily or involuntarily, without the prior written consent of the CITY, which consent shall not be unreasonably withheld. 14. Remedies upon Default. A. Default by DEVELOPER. In addition to such other remedies at law or in equity that CITY may have, in the event DEVELOPER fails or neglects to perform its obligations under the terms and provisions of this Agreement in the time and manner required herein, CITY may withhold any reimbursement due to DEVELOPER hereunder until such default is corrected to the satisfaction of CITY. Any withholding of reimbursement shall only be for the amount in dispute and the CITY shall have no right to withhold funds that are not in dispute between the parties. COOPERATIVE CONSTRUCTION AND REIIvIBiJRSEMENT AGREEMENT -Page 5 of 14 B. Default by CITY. In the event CITY fails or neglects to perform its obligations under the terms and provisions of this Agreement in the time and manner required herein, DEVELOPER shall be entitled to all remedies available at law or in equity. C. Notice of Default. If either the DEVELOPER or the CITY claims the other is in default of a provision of this Agreement, they shall give a ten (10) day notice of default to the other party and the other party shall thereafter have ten (10) days to cure the default. 15. Attorne Fees. Should either party find it necessary to employ an attorney for representation in any action seeking enforcement of any provision of this Agreement, or to recover damages for breach of this Agreement, or to resolve any disagreement as to the interpretation of this Agreement, the unsuccessful party in any final judgment or award entered pursuant to such action shall reimburse the prevailing party for all reasonable costs, charges and expenses, including attorneys' fees expended or incurred by the prevailing party in connection therewith and in connection with any appeal, and the same may be included in such judgment or awazd. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 16. Notices. Any notice desired by the parties and/or required by this Agreement shall be sent via United States Mail, registered or certified mail, postage prepaid, return receipt requested, and shall be addressed as follows: CITY: Meridian City Engineer City of Meridian 200 E. Cazlton, Suite #101 Meridian, Idaho 83642 with copy to: City Clerk City of Meridian 33 E. Idaho Ave. Meridian, Idaho 83642 All parties constituting DEVELOPER: c/o Primeland Investment Group, LLC Attn: Frank Varriale, Manager 3120 West Belltower, Suite 100 Meridian, Idaho 83642 Such notice shall be deemed delivered if and when delivery is accepted or three (3) days after deposit in the United States Mail. Either party shall have the right to change its address by delivering to the other party a written notification thereof in accordance with the requirements of this section. COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 6 of 14 • • 17. Governin Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho and the ordinances of the City of Meridian. 18. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of this Agreement as if the exhibits were set forth in their entirety in this Agreement. 19. Entire Agreement. This Agreement and the exhibits hereto constitute the full and entire understanding and agreement between the parties with regard to the transaction contemplated herein, and no party shall be liable or bound to any other in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein. 20. Definition of CITY's Property. The term "CITY's Property" in the Agreement shall mean the parcels shown on Exhibit "A" attached hereto. 21. Bindn Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors and assigns, and shall survive any transfer by DEVELOPER of DEVELOPER'S Property. 22. Reports and Information. At such times and in such forms as the CITY may require, DEVELOPER shall furnish to CITY such statements, records, reports, data and information as the CITY may request pertaining to matters covered by this Agreement. Such reports shall be at the sole cost of the CITY and not the DEVELOPER. 23. Audits and Inspections. At any time during business hours and as often as the CITY may deem necessary, there shall be made available to the CITY for examination all of DBVELOPER's records with respect to all matters covered by this Agreement. DEVELOPER shall permit the CITY to audit, examine, and copy such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. All such audits and examinations shall be at the sole cost of the CITY and not the DEVELOPER. 24. Construction and Severabilitv. If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. 25. Approval Required. This Agreement shall not become effective or binding until approved by CITY. IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their du]y authorized officers the day and yeaz first above written. COOPERATIVE CONSTRUCTION AND REIIvIBURSEMENT AGREEMENT -Page 7 of 14 DEVELOPER: BRIGHTON DEVELOPMENT, INC. Name (printed) Signature TREEHAVEN,LLC • Title Date Name (printed) Signature Title Date PRIMELAND IIWESTMENT GROUP, LLC Name (printed) Title Signature CITY: BY: Date TAMMY de WEERD, MAYOR Date Attest: WILLIAM G. BERG, JR., CITY CLERK COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 8 of 14 STATE OF IDAHO ) ss County of Ada ) On this day of 2007, before me the undersigned, a Notary Public in and for said State,. personally appeared known or identified to me to be the of the corporation that executed the instrument or the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public For Idaho Residing at: Commission Expires:_ STATE OF IDAHO ) ss County of Ada ) On this day of 2007, before me the undersigned, a Notary Public in and for said State, personally appeared known or identified to me to be the of the limited liability company that executed the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have. hereunto set my hand and affixed my official seal the day and year first above written. STATE OF IDAHO ) ss County of Ada ) Notary Public For Idaho Residing at: Commission Expires: On this day of 2007, before me the undersigned, a Notary Public in and for said State, personally appeared FRANK VARRIALE, known or identified to me to be the Manager of the limited liability company that executed COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 9 of 14 • the instrument or the person who executed the instrument on behalf of said limited liability company, and acknowledged to me that such limited liability company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public For Idaho Residing at: Commission Expires:_ STATE OF IDAHO ) ss County of Ada ) On this day of , 2007, before me the undersigned, a Notary Public in and for said State, personally appeared TAMMY DE WEERD and WILLIAM G. BERG, JR, known to me to be the Mayor and City Clerk of the City of Meridian, Idaho, who executed the within instrument and acknowledged to me that they executed the same on behalf of the City of Meridian IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public For Idaho Residing at: Commission Expires:_ COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 10 of 14 ~ i EXHIBIT ~~A" COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT - Page I l of 14 EXHIBIT "B" ICJ COOPERATNE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 12 of 14 EXHIBIT "C" COOPERATIVE CONSTRUCTION AND REIMBURSEMENT AGREEMENT -Page 13 of 14 EXHIBIT "D" COOPERATIVE CONSTRUCTION AND REIIVIBURSEMENT AGREEMENT -Page 14 of 14